OCTOBER D87 - Voice For The Defense Online

IConstitution and Article I, Section 9 of theTexas Constitution.In Aliff v. State.46 the warrantless seizureof a blood sample requested by an officerof the state, was permissible where probablecause existed along with exigentgrounds, i.e., rapidity of alcohol dissipationin the blood. In Rodriguez v. St~fe,~7the Court of Criminal Appeals additionallyheld that the taking of bodily samples, includingbreath samples, does not fall undera testimonial communication protected bythe privileges against compulsory selfincriminationunder either the state orfederal Constitution or under the seminalUnited States Supreme Court decision ofMiranda v. Ari~ona.~gNotwithstanding the fact that a suspectmay not invoke his Fifth Amendment protectionagainst self-incrimiuation on thegrounds of Mironda's safeguards as a basisfor refusal to take a breath or blood sampleto determine alcohol concentration, theCourt of Criminal Appeals has stated thatthere are constitutional andlor statutoryprotections still available.More specifically, the court held inMcCnmbridge v. State, that "[dlue processconcerns could be involved if the policeinitiated physical violence while administeringthe test [or] refused to respect areasonable request to undergo a differentform of testing, or responded to resistancewith inappropriate force . . ." upon thesuspect's refusal to take an exam.49Although constitutional grounds may notcome into play upon the taking of a sample,upon the suspect's arrest, statutoryprovisions under Article 67011-5 may takehold and offer the suspect the needed protectionfrom specimen taking.Case law clearly holds that the seizureof bodily fluids, as urine, without the consentof the suspect at the time of his ar-rest, is a non-consensual seizure. In thecase of Darland v. a non-arrestcase, the defendant was followed by apolice officer into a hospital restroom,whereupon the officer placed a styrofoamcup in front of the defendant as he urinated.At the time of the taking of the sample, thedefendant did not consent or object to thetaking of the urine. The officer then hadthe urine specimen tested in a policelaboratory. The court held that at the timeof the taking of fhe urine specimen, thedefendant was not under arrest and that,therefore, the sample taken was admissibleeven though there was no express con-sent.51In McKenna v. Stafe, a case in which thedefendant had been arrested and did notexpressly consent to the urine specimencollection, the court held the results inadmissibleon the ground that the policeviolated the defendant's statutory rights, asprovided in Article 67011-5, by taking theurine sample without his consent.52Relevancy v. the Danger ofUnfair PrejudiceUrinalysis test results, to be admissible,are subject to our rules of evidence.Evidence is admissible, if for the mostpart, it is considered relevant. As is set outunder Rule 401 of the Texas CriminalRules of Evidence, evidence is deemedrelevant if it has ". . . any tendency tomake the existence of any fact that is ofconsequence to the determination of the actionmore probable or less probable thanit would be without the e~idence."~~ Inother words, does the evidence possesssufficient value to justify its acceptanceinto evidence?The relevancy of evidence is the existenceof the relationship between the itemoffered into evidence and what it tends toestablish. Query: Does the evidence offeredtend to prove what it additionallysought to provide?Furthermore, one can extrapolate thatthe evidence introduced must be a fact thatis of consequence to the determination ofthe action sought to be proved. If the evidenceis not of consequence to the deter-mination ol'thc action,~thcn thc acccplanccof the item should bc denied on the groundsthat it is not relevant.Therefore, with regard to the admissibilityof urinalysis, when the test resultsare offered into evidence this questionmustbeposed: Does the evidence tend to provethe matter sought to be proved? In otherwords, is the urine test result relevant toshow the sobriety or intoxication of thedefendant at the time of his driving?If the test's ability to make such a determinationis of a highly questionable nature,drawn upon logical experience and scientificreasoning, then said test should bedeemed not relevant. Accordingly, as perRule 402, Tex. R. Cr. Evid., evidencewhich is not relevant is not admissible and,therefore, the urine analysis test resultshould not be admissible. This conclusionbecomes more clear when the rules of evi-dence are coupled with scientific findings.Sufficiency of Urine Testv. Reasonable DoubtEvidence must be sufficient to supporta conviction of a defendant: The test forsufficiency of the evidence is whether anyrational trier of fact could have found theessential elements of the crime beyond areasonable doubt."Placing a high level of doubt within themind of the trier of fact is the touchstonefor acquitting the defendant. Doubt can beraised by demonstrating to the trier of factthat, at the time of the taking of the urinalysisexamination, subsequent to thedefe~zdartf's driving, that said chemicalreading was not, in fact, indicative ofdefendant's level of intoxication at the rimeofhis driving. Indeed, from a quantitativeviewpoint, the likelihood of a defendanthaving a 0.10 or greater reading at the timeof driving would be just as probable as itbeing below a 0. I0 reading.Ordinarily, sufficiency of urine evidenceargument by a defendant, based solely ona chemical test may be offset by the prosecutor'sintroduction of oral testimony,usually from the arresting However,ease law suggests that such an argument,absent officer opinion testimony,would merit a directed verdict.56In this regard, it must be rememberedthat the rate at which ethanol is oxidizedis not constant for an individual. Indeed,the rate of oxidation varies within the sameperson with time, and also from one occasionto the next. This rate of oxidationrange varies from 0.010% to 0.025% perhour.j7 Accordingly, in order to acoumulatealcohol in the body, the rate ofabsorption must exceed the rate of itselimination. When the defendant ceasesconsumption and absorptionis completed,the alcohol concentration will fall as theliver metabolizes the alcohol.58To take this one step further, when achemical test is administered, it mustalways be remembered that the text resultsdemonstrate the alcohol concentration atthe time the sample was administered andnot at the time of the defendant's driving.Therefore, with specific reference to sufficiency,the alcohol concentration at aperiod of time prior to the test, could havebeen one of three possibilities: 1) higherthan at the time of the reading; 2) the sameas at the time of the reading; or, more im-30 VQICE for the Defense I October 1987