Sunday, February 21, 2010

BAC Test Results Admissible without Extrapolation Testimony

In 2004, the Texas Court of Criminal Appeals held, in Stewart v. State, 129 S.W.3d 93 (Tex. Crim. App. 2004), that an intoxilyzer test taken approximately 80 minutes after the defendant had been driving, was admissible as it "tended to make it more probable that she was intoxicated at the time she drove under [both the per se and impairment] definition[s] of intoxication."  Id. at 96.  The Court so held despite the fact that the State failed to offer retrograde extrapolation testimony to show what the BAC may have been at the time of driving.  And so it was written: BAC results are admissible without extrapolation evidence.  See also State v. Mechler, 153 S.W.3d 435 (Tex. Crim. App. 2005).  (*Obviously, the court must consider other factors, such as, the time the test was taken and whether the defendant's submission to the test was voluntary, before finding a BAC test results relevant and admissible.)

I write about this issue because on 10 Feb 2010, the Court reported a case that piqued my interest. In Kirsch v. State, the Court reaffirmed the above holding.  Read majority opinion HERE.   The case was particularly interesting, because when the trial court admitted the BAC test results it gave the following limiting instruction:
Members of the jury, I'm going to tell you now that the result is off...will be received by the Court for the limited purpose of showing that the individual who was tested had ingested alcohol only at some point before the time of the test.  That is the only purpose that will be offered and the only purpose for which you should receive it at this time in this trial.
On appeal, Appellant argued that the limiting instruction precluded the Court from then submitting jury instructions on the per se definition of intoxication.  The First District Court of Appeals (Houston) held that the jury charge was proper, but the limiting instruction was not and reversed.  See Kirsch v. State, 276 S.W.3d 579, 589 (Tex. App.-Houston [1st Dist.] 2008).  The CCA agreed that the limiting instruction was improper, but nevertheless affirmed the conviction, holding that "the totality of the evidence sufficed to permit the jury to conclude that appellant had an alcohol concentration of 0.08 or more at the time he was driving.   Judge Price dissented.  Read dissent HERE