D.W.I. LAW UPDATE

BETTY BLACKWELL

Attorney at Law

Board Certified in Criminal Law

1306 Nueces Street

Austin, Texas 78701

TABLE OF CONTENTS

Page

Table of Authorities......................................................................................... iii

Mata and Beyond.............................................................................................. 1

Bagheri v. State................................................................................................. 1

Court of Appeals and Mata.............................................................................. 3

Reliability.......................................................................................................... 5

Other Issues...................................................................................................... 5

Admissibility of Priors

Evidentiary issues............................................................................................. 5

Voice Exemplar

Hot Pursuit....................................................................................................... 6

Police Jurisdiction............................................................................................. 6

Community Caretaking Functions.................................................................... 8

Double Jeopardy............................................................................................... 9

Horizontal Gaze Nystagmus

Failure to Maintain a Single Lane................................................................... 12

Blood Tests..................................................................................................... 14

TABLE OF AUTHORITIES

Page

Aguilera v. State,

............................................................ (Tex.App.-San Antonio, decided 2-6-02) 10,12

Alonzo v. State,

................................................................... (Tex.App.-Waco, decided 12-19-01) 12

Ames v. State,

.......................................................... 499 S.W.2d 110, 114 (Tex.Cr.App.1973) 13

Apprendi v. New Jersey,

.......................................................................... 530 U.S.466 (2000) 5,6

Armstead v. State,

...................................................... 977 S.W.2d 791 (Tex.App.-Ft. Worth 1998) 15

Barley v. State,

906 S.W.2d 27, 37 n. 11 (Tex.Cr.App.1995), cert. denied,

................................... 516 U.S. 1176, 116 S.Ct. 1271, 134 L.Ed.2d 217 (1996) 14

Berry v.State,

..................................................... 759 S.W.2d 12 (Tex. App.-Texarkana 1988) 10

Bollman v. State,

.............................................................. 629 S.W.2d 54, 55 (Tex.Cr.App.1982) 13

Collins v. State,

...................................................... 955 S.W.2d 464 (Tex.App.-Ft. Worth 1997) 13

Ex parte Boyd,

.................................................. 58 S.W.3d 134 (Tex.Cr.App. 2001) 6

Gannaway v. State,

................................... 823 S.W.2d 675, 678 (Tex.App.-Dallas 1991, pet. ref'd) 15,16

D.W.I. LAW UPDATE

Mata and Beyond

On June 6 th , 2001 the Court of Criminal Appeals decided the landmark decision of Mata v. State, 46 S.W.3d 902. The Court held that the "science of retrograde extrapolation" must be proven by clear and convincing evidence that the expert's testimony is reliable. The finding in that case was that there was not a showing that the testimony was reliable and therefore the introduction of the retrograde extrapolation was error. Pursuant to Hartman v. State, 946 S.W.2d 60, (Tex.Crim.App. 1997) the government must prove the reliability of the breath test under the scientific evidence 702 of the Rules of Evidence. The science attempts to compute back in the time, the blood alcohol level, at the time of driving based on the test result obtained some time later.

The facts of Mata are that two hours and nine minutes after the driving, he blew .19. There are two samples taken on the Intoxilyzer 5000 but because they are so close in time, they are considered one test. The technical supervisor testified that Mr. Mata was intoxicated at the time of driving. He said at trial that the range was from .13 to .23. McDougall admitted he did not know how much Mata weighed, how much Mata had to eat or drink before taking the test, or when Mata's last drink was. 702 requires that the state establish by clear and convincing evidence (1)that the underlying scientific theory is valid, (2) the technique for applying the theory is valid and (3) the proper application of the technique on the occasion in question.

The Court held that the science can be reliable in a given case. However, the issue in this case was it properly applied on this occasion. McDougall admitted he did not know any personal characteristics of Mata. He did not whether Mr. Mata had eaten anything, how much he had had to drink, what he had to drink, the length of time he was drinking or his weight. The Court found that these factors weighed against a finding of reliability.

The Court stated that to consider the reliability of the science they should consider (a) the length of time between the offense and the tests, (b) the number of tests given and the length of time between each test and (c) whether any individual characteristics of the defendant were known to the expert. In our circumstances where the Intoxilyzer 5000 generates two tests so close in time, it is the equivalent of only one test. Therefore, the expert must have knowledge of many of the personal characteristics in order for the extrapolation to be reliable.

Possible personal characteristics are:

1. Weight

2. Gender

3. Typical drinking pattern and tolerance for alcohol

4. How much was drank

5. What was drank

6. Duration of the drinking spree

7. Time of the last drink

8. What was eaten and how much was eaten.

The court recognizes that if all of these must be known there will never be a valid retrograde extrapolation. They hold that it is a balancing of factors. Since McDougall "did not know one single personal characteristic", then the State failed to prove by clear and convincing evidence that McDougall's retrograde extrapolation was reliable. The case was reversed and remanded to the Court of appeals where they determined the defendant had failed to show harm and affirmed the decision.

Bagheri v. State, 119 S.W.3d 755(2003)

In the meantime Bagheri v. State was decided by the Court of Criminal Appeals on November 5, 2003. The trial court had allowed the admission of retrograde extrapolation to show that the results of an Intoxilyer test administered more than an hour after his arrest proved that he was intoxicated while he was driving. Mr.McDougall again testified in Mr. Bagheri's trial to a range of numbers that he said would represent Mr. Bagheri's BAC at the time of driving. On appeal the State admitted error under Mata but argued it was harmless due to the two definitions of intoxication. The Court of Appeals reversed finding error and the Court of Criminal Appeals granted the state's PDR.

The expert testified that everyone is impaired at 0.08 and that Mr. Bagheri's BAC was greater than 0.10 at the time of driving. The state emphasized the expert testimony and therefore the Court affirmed the Court of Appeals finding that "we cannot say with fair assurance that the erroneous admission of McDougall's retrograde extrapolation testimony did not influence the jury".

On December 17 th , 2003 the Court of Criminal Appeals reversed the Court of Appeals finding that the error in Mata was not harmful based on Bagheri.

One of the most important statements to the defense in Bagheri, is that even though the Transportation Code allows the introduction of the breath test without establishing the scientific basis for such test, that does not "relieve the State of the burden of showing that those test results in any given case are relevant". The Court relied upon Forte v. State, 707 S.W.2d 89 (Tex. Crim. App. 1986), which was the case that affirmed the constitutionality of the new "per se" definition of intoxication. Forte states that the "the jury must still be convinced beyond a reasonable doubt that an inference can be made from the results of the chemical test that the defendant had a 0.10% alcohol concentration in his body at the time of the offense".

Court of Appeals and Mata

Many court of appeals have ruled that the evidence of retrograde extrapolation was error but not harmful. See Douthitt v. State 03-02-00810-cr (Tex. App.-Austin 1/29/04). These cases many be remanded based on Bagheri.

Several court have looked at what evidence is sufficient under Mata to allow the introduction of the retrograde extrapolation. Bhakta v. State (Tex. App. Houston (1st Dist.) 2003, the Court held that since the defendant had stipulated to the time of his last drink, his weight and height, the time of the breath test, the results of the breath test, his last meal prior to being stopped and the time of that meal, there was sufficient information for the technical supervisor to use to testify about retrograde extrapolation. The breath test in that case was one and one half hour after the stop. The court held the evidence to be reliable and not defeated by a 403 balancing test. The Court noted that Mata requires the expert to demonstrate an understanding of the difficulties associated with extrapolation and to apply the science clearly and consistently, which they found had been done in that case.

Urquhart v. State held that the retrograde extrapolation was admissible even without knowing what the Defendant had eaten. In that case, the expert knew the defendant's sex, height, weight, what he drank and how much he drank, and that was sufficient to allow the introduction of the retrograde extrapolation. Decide 12-11-03 ( Tex. App.-El Paso).

RELIABILITY

The Court in Mata left open the question of whether a breath test without retrograde extrapolation should be admitted at all. The argument was that without the scientific evidence to relate the results back to the time of driving, the results were then not relevant under the Rules of Evidence. Stewart v. State, 103 S.W.3d 483 (Tex. App. 2003), the San Antonio Court of Appeals ruled accordingly, holding that a breath test taken 80 minutes after the driving was irrelevant and inadmissible without retrograde extrapolation. McDougall testified in the Stewart case that he did not have enough information to determine what the alcohol concentration would have been at the time of driving. The Court of Criminal Appeals, on February 18, 2004 reversed that decision of the Court of Appeals. They held that the results were relevant without retrograde extrapolation. The Court rejected that State's position that the Transportation Code created an absolute admissibility of the test results. The Court remanded to the Court of appeals to address the 403 argument that the probative value of the test results are outweighed by the unfair prejudice.

On March 3, 2004 the February 18 th opinion was withdrawn and a new Stewart decision was issued. The vote changed on the 2 nd Stewart opinion. Judge Meyers switched from dissenting to concurring with Judge Womack. Judge Womack points out in his concurrence that the issue of whether the relevancy value can outweigh the unfair prejudice when there is no retrograde extrapolation, has not been resolved. Four justices hold this opinion, with Judge Price dissenting stating that the court should rule that the breath test was inadmissible under Rule 403 without retrograde extrapolation.

The 14 th Court of Appeals in Houston, held that a intoxilyzer result taken one and a half hours after the defendant's arrest was admissible without retrograde extrapolation and that the prejudice of admitting it, did not outweigh the probative value. See State v. Mechler, No. 14-02-00359-cr, decided 9-23-03.

OTHER ISSUES RECENTLY DECIDED

Admissibility of Prior Convictions

Hernandez v. State, 109 S.W.3d 491, (Tex. Crim. App. 2003) held that because the Defendant had stipulated to his three previous convictions for driving while intoxicated, the state was precluded from reading each of the prior convictions at the beginning of the trial and from proving the three convictions in the state's case in chief. The Court affirmed the Court of Appeals reversal of the case for this error.

Hollen v. State, 117 S.W.3d 798 (Tex. Crim. App. 2004) held that it was not error to inform the jury of the defendant's stipulation to two prior DWI convictions and the stipulation was admissible to the jury.

Defendant can be prosecuted with a prior DWI that is more than ten years to the instant DWI offense if there is one prior within the 10 year period. Anderson v. State, 110 S.W.3d 98 (Tex. App.-Dallas 2003)

EVIDENTIARY ISSUES

VOICE EXEMPLAR

Williams v. State, 116 S.W.3d 788, (Tex. Crim. App. 2003) held that the defendant was allowed to introduce evidence of his speech without subjecting himself to cross examination. The state had successfully kept Mr. Williams from reading in front of the jury because the judge ruled he would be subject to cross examination if he did so.

The Court of Criminal Appeals found that pursuant to Supreme Court precedent, voice exemplars are not testimony. They are in the same category as handwriting or fingerprints and therefore outside the fifth amendment. The Court reversed the trial court's refusal to allow Mr. Williams to read in front of the jury. A voice exemplar does not waive the defendant's right to be free from self-incrimination and he is not subject to cross examination.

HOT PURSUIT

Yeager v. State, 104 S.W.3d 103 (Tex. Crim. App.2003) held that the detention of the defendant was legal under the "hot pursuit" doctrine. The officer had begun the pursuit within their geographic boundary and had had reasonable suspicion that the defendant was driving while intoxicated. The immediate and continuous pursuit of the defendant from the scene was lawful.

POLICE JURISDICTION

State v. Kurtz, 111 S.W.3d 315(Tex. App.-Dallas 2003) the Court of Appeals held that a Plano police officer was outside of his geographical jurisdiction in Frisco and could not lawfully detain the defendant for a breach of the peace based only on reasonable suspicion. Plano's police officer's jurisdiction was limited to the city limits. PDR was granted on November 19, 2003. Perkins v. State, 812 S.W.2d 326(Tex. Crim. App. 1991) is the best Court of Criminal Appeals decision setting out that officers must be acting within their geographical jurisdiction in order for a traffic stop to be valid. In Perkins the airport police stopped the Defendant for running a red light and then arrested him for DWI. The Court reversed holding that the officer was outside his jurisdictional limits.

COMMUNITY CARETAKING FUNCTION

In Corbin v. State, 85 S.W.3d 272 (Tex. Crim. App. 2002), the Court of Criminal Appeals held that crossing the stripe onto the shoulder one time was not failing to maintain a single lane, so that the officer could stop on that basis. The officer further testified that he wanted to check on the defendant to see if he was drunk or sleepy or in need of assistance. As the defendant pulled over, the officer saw no traffic violation. The Court held that the Court of Appeals erred in finding that this was proper under the community caretaking function. The officer's belief that the defendant needs help must be reasonable. The court held in this case, the exercise of the community caretaking function was not reasonable.

DOUBLE JEOPARDY

The Court of Criminal Appeals granted an interesting Double Jeopardy issue in the Taylor v. State case, 101 S.W.3d 434 (Tex. Crim. App. 2002). The Defendant had been found not guilty of intoxication manslaughter of one car passenger with alcohol alleged as the intoxicant. He was indicted for intoxication manslaughter of another car passenger, with marijuana as the intoxicant. Judge Cochran held that collateral estoppel barred the state from relitigating the ultimate issue of intoxication regardless of the different intoxicant alleged.

HORIZONTAL GAZE NYSTAGMUS

Emerson v. State, 880 S.W.2d 759(Tex. Crim. App. 1994) is the Court of Criminal Appeals decision that allowed the introduction of the HGN as part of the standardized field sobriety tests officer used to determine intoxication. Gerron v. State, 119 S.W.3d 371 (Tex. App.-Waco 2003) states that a literal reading of Emerson only requires the practitioner's certificate not the proficiency certificate to testify as an expert on HGN. Emerson specifically held that the officer can not testify to what he believes the defendant BAC would be based on the results of the HGN.

FAILURE TO MAINTAIN A SINGLE LANE

Section 545.060(a) of the Transportation Code sets out the basis for the traffic offense of weaving. Hernandez v. State 983 S.W.2d 867(Tex. App. Austin 1998)found that a single instance of crossing the dividing line did not give the officer reasonable basis for suspecting the defendant had committed a traffic offense. State v. Arriaga, 5 S.W.3d 804(Tex. App.-San Antonio 1999) held that weaving within the lane of traffic did not violate this section of the Transportation Code and did not give reasonable suspicion to stop the vehicle.

In State v. Tarvin, 972 S.W.2d 910(Tex. App.-Waco, 1998) the Court found "the sparse facts indicate that on June 8, 1996 around 2:00 a.m., Officer Diron Hill followed Tarvin and observed him drift to the right side of a two lane road causing his tires to go "over" the solid white line at the right-hand side of the road on two or three occasions. Hill activated his overhead emergency lights, and Tarvin pulled over in response. The evidence shows that Tarvin never went into another lane of traffic, nor did he have difficulty maintaining a safe speed. Hill testified that he stopped Tarvin because his vehicle crossed over the white line. He testified that no other traffic violations occurred, that he did not observe any other weaving, and that he noticed "nothing else unusual" about Tarvin's driving. We do not find that Tarvin's driving provided a reasonable suspicion of criminal activity."

BLOOD TESTS

State v. Comeaux, 818 S.W.2d 46 (Tex. Crim. App. 1991) suppressed blood test results taken at the hospital. The Defendant was not under arrest and the officer stated he had not probable cause to arrest the Defendant. Despite that, the officer provided the nurse with a form stating the defendant was under arrest and was required to give blood and ordered the nurse to acquire the sample and turn it over to the officer. Under these very specifics facts the Court suppressed the results of the blood test.

In Hardy v. State, 963 S.W.2d 516, (Tex.Crim.App. 1997) Defendant was charged with misdemeanor offense of driving while intoxicated (DWI) filed motion to suppress medical records containing blood-test results. The County Criminal Court granted motion, and appeal was taken. The Court of Appeals reversed, and review was granted. The Court of Criminal Appeals, Keller, J., held that: (1) whatever interests society may have in safeguarding privacy of medical records, they are not sufficiently strong to require protection of blood-alcohol test results from tests taken by hospital personnel solely for medical purposes after traffic accident, and (2) rule eliminating physician/patient privilege in criminal proceedings was not overturned by Emergency Medical Services Act. The Court of Appeals was affirmed.

In Tapp v. State,108 S.W. 3d 459, (Tex. App. Hous. (14Dist.)2003) addressed whether the privacy regulations promulgated by the Health Insurance Portability and Accountability Act, overruled the Court of Criminal Appeals decision in Hardy. The Court of Appeals held that since the rules did not go into effect until April 14, 2003, the defendant's claim was premature. These regulation restrict and define the ability of covered entities, like health care providers, to divulge patient medical records. So the issue is still open as to whether these federal regulations overrule State law.

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