Kirsch, continued
Responding paramedics took appellant to Ben Taub Hospital for treatment of a head injury.
Dr. Becker, the emergency center-chief, thought that appellant's aggressive behavior was the result of alcohol consumption rather than head trauma because appellant seemed to understand, but intentionally disregard, questions, requests, and commands. Dr. Becker ordered a blood-alcohol test at 4:28 a.m., which revealed a serum-alcohol concentration of 0.123, that translated to a blood-alcohol level (BAC) of 0.10.
Investigating officers downloaded information from the patrol car's "black box"-a device that stores data about a car's functions for five seconds prior to air-bag deployment. The data showed that appellant was driving 69 m.p.h. four seconds before the collision and 67 m.p.h. one second before the crash. The posted speed limit was 50 m.p.h. The patrol car left skid marks on the pavement, but the black box indicated no brake application, suggesting that appellant had applied his brakes less than one second before impact. Deputies also found two Smirnoff vodka bottle caps in the patrol car.
Appellant filed a pretrial motion to suppress the blood-test results and argued that the State could not produce retrograde extrapolation testimony. The trial court denied the motion to suppress, but said that he intended to admit the BAC-test result with a limiting instruction until the State offered extrapolation evidence.
The court of appeals properly analyzed several recent cases in which we held that intoxilyzer BAC results were admissible and probative of per se intoxication even without retrograde extrapolation testimony. In Stewart v. State, the defendant took an intoxilyzer test approximately 80 minutes after she had been driving. The trial court admitted the result of 0.154 as some evidence that her BAC was over the then legal limit of 0.10 while driving. However, the court of appeals reasoned that, by admitting the breath test, the court had encouraged the jury to "conduct its own retrograde extrapolation and to decide the case based on facts not in evidence." It held that the results were irrelevant to show she was intoxicated at the time she drove. We reversed and explained,
…evidence need not by itself prove or disprove a particular fact to be relevant; it is sufficient if the evidence provides a small nudge toward proving or disproving some fact of consequence.
The issue here is whether Stewart was intoxicated at the time she drove. Stewart's breath test results tended to make it more probable that she was intoxicated at the time she drove under either definition of intoxication because they provided evidence that she had consumed alcohol. And, there is no evidence that she consumed alcohol after driving.
Although we stated that the test result was not "conclusive" evidence of the defendant's intoxication at the time she was driving, it was probative and, coupled with the other evidence, could suffice to prove per se intoxication at the time she was driving.
More recently, in Gigliobianco v. State, we reiterated that the 0.09 and 0.092 BAC results of two breath tests taken 75 minutes after driving had considerable probative value in proving both per se and impairment intoxication at the time of driving.
The purport of these decisions, taken together, is that BAC-test results, even absent expert retrograde extrapolation testimony, are often highly probative to prove both per se and impairment intoxication. However, a BAC-test result, by itself, is not sufficient to prove intoxication at the time of driving. There must be other evidence in the record that would support an inference that the defendant was intoxicated at the time of driving as well as at the time of taking the test. We have explained that, [t]o be sure, if the State relies upon the [per se] definition of intoxication, then such proof will normally appear in the form of a chemical test showing the alcohol concentration in a defendant's body near the time of the offense. However, a conviction will not necessarily follow from the offer of such a test. First, the trier of fact must still be convinced beyond a reasonable doubt that the chemical test provides trustworthy evidence of alcohol concentration in a defendant's breath, blood or urine. Second, 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.
Other evidence that would logically raise an inference that the defendant was intoxicated at the time of driving as well as at the time of the BAC test includes, inter alia, erratic driving, post-driving behavior such as stumbling, swaying, slurring or mumbling words, inability to perform field sobriety tests or follow directions, bloodshot eyes, any admissions by the defendant concerning what, when, and how much he had been drinking-in short, any and all of the usual indicia of intoxication.
The limiting instruction
Rule 105 of the Texas Rules of Evidence provides that "[w]hen evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." Thus, when a statute, rule of evidence, or judicial precedent stipulates that certain evidence may be admissible for a specific, limited purpose, the jury should be instructed as to that purpose and told not to consider that evidence for any other, improper, purpose. There is, however, no Texas statute, rule of evidence, or judicial precedent that limits the jury's consideration of an otherwise admissible BAC-test result. Our decisions in Mata, Stewart, Mechler, and Gigliobianco state the opposite. A BAC-test result that is taken within a reasonable period of time after the defendant has been driving and shows that he was above the legal limit of intoxication at the time of taking the test is probative--although not conclusive--of per se intoxication at the time of driving. The BAC test showing intoxication at the time of the test must be supported by some other evidence that indicates intoxication at the time of driving as well. But that judicially imposed requirement deals with the sufficiency of the evidence, not the admissibility or use of evidence. Absent a statute that requires the jury to be instructed about the sufficiency of certain evidence, jurors are not instructed on such issues or limited in their consideration of evidence otherwise fully admissible. "'Texas courts are forbidden from instructing the jury on any presumption or evidentiary-sufficiency rule that does not have a statutory basis.'” Such an instruction is an improper comment on the weight of the evidence.
Technically, the trial judge's limiting instruction is not legally incorrect: a BAC test does not tell us when a person became intoxicated or that the person was necessarily intoxicated at the time of driving. For that, the jury needs some additional evidence; in this case, there was ample additional evidence to prove that appellant was per se intoxicated at the time of the test and at the time he drove. But the instruction was an improper comment on the weight of the evidence, and it was misleading because it was susceptible to misunderstanding.
In sum, the trial judge properly instructed the jury on the per se intoxication theory because there was sufficient evidence, in addition to the 0.10 BAC-test result obtained 80 minutes after the accident, to conclude that appellant was per se intoxicated at the time of the accident. The trial judge erred in giving any limiting instruction, but that instruction simply informed the jury that, by itself, the test result did not prove more than that appellant ingested alcohol (and became intoxicated) "only at some time before the time of the test." This instruction was improper and misleading, but it did not prohibit the jury from using the BAC-test result, along with the rest of the evidence, to conclude that appellant was per se intoxicated at the time he was driving.
DWI Court Training, continued
Enhanced supervision is one of the ten guiding principles of DWI Courts; this helps ensure public safety while holding the defendant accountable. It also aids in early intervention for relapse and stresses the importance of treatment in DWI Court programs.
Judge Alex R. Hernandez, Calhoun County Court at Law # 1, also applied for this year’s training. A new member of the Texas Center for the Judiciary’s DWI Curriculum Committee, Judge Hernandez attended last year’s Texas Judicial College for the Study of Alcohol and Other Drugs (DWI College) and attended the DWI Court session open to all trial judges and sees the opportunity to start a DWI Court as a tool for his county. “Perhaps the impression might be that the court will be opening the flood gates and that the court will be inundated with people who want to escape the usual consequences of punishment. But DWI Courts employ a very selective process and few qualify. The program isn't a cakewalk for anyone. However, there is a high success rate.”
Judge Hernandez also sees a DWI Court as an opportunity to help those residents of Calhoun County with alcohol problems that could cost them their families and their livelihoods as well their own lives. “Occasionally you may have a person with a DWI conviction that may threaten their career, or future career opportunities; for example, parole officers, nurses, doctors, welders. In very limited instances, the judge, the district attorney, the probation department, the sheriff's representative, and the counselor may decide that someone can actually be saved from a pernicious addiction, an addiction that affects the person, the job and the family.”
In 2007, the 80th Texas Legislature passed House Bill 530, which mandates that Texas counties of 200,000 residents or more are required to have a DWI Court to serve the needs of their citizens and reduce the number of impaired drivers in those counties. You may find an article about the passage here: http://www.yourhonor.com/dwi/newsletter/july07newsletter.html
The Texas Center’s DWI Court Team Training is free, funded by a grant from the Texas Department of Transportation. Expenses (lodging, meals, parking, taxis/shuttles, airfare/mileage) are reimbursed through this grant. DWI teams consist of the following team members: a judge, a prosecutor, defense counsel, treatment provider, an expert in research or evaluation, DWI/Drug Court coordinator, law enforcement and probation/supervision. The Texas Center provides funding for the first eight members of a team; additional members may attend although their expenses may not be reimbursed.
Thus far, the Texas Center in association with the National Center for DWI Courts has trained 26 judges, resulting in DWI Courts in Bexar, Brown, Cameron, Comal, Collins, Dallas, Denton, Fort Bend, McLennan, Tarrant, Travis, Williamson, and Victoria counties.
If you are interested in applying for the 2011 DWI Court Team Training, please contact Dr. Ann Blankenship or Ms. Rebecca Pitts at the Texas Center for the Judiciary.