Intoxilyzer test in Texas

2008In Erdman, the court of criminal appeals emphasized that Erdman “consented to the intoxilyzer test only after the trooper gave him [the extra-statutory warnings] concerning the consequences of refusal.” Erdman, 861 S.W.2d at 893–94 (emphasis added); see also Thorn v. State, No. 02-95-00872-CR, 1997 WL 672623 , at *4 (Tex. App.—Dallas Oct. 30, 1997, pet. ref’d) (not designated for publication) (distinguishing Erdman and holding that extra- statutory warnings given after defendant consented to breath test had no impact on whether she should take the test).

2008In Erdman , the court of criminal appeals emphasized that Erdman “consented to the intoxilyzer test only after the trooper gave him [the extra-statutory warnings] concerning the consequences of refusal.” Erdman , 861 S.W.2d at 893–94 (emphasis added); see also Thorn v. State , No. 02-95-00872-CR, 1997 WL 672623 , at *4 (Tex. App.—Dallas Oct. 30, 1997, pet. ref’d) (not designated for publication) (distinguishing Erdman and holding that extra-statutory warnings given after defendant consented to breath test had no impact on whether she should take the test).

2014Henderson v. State, 14 S.W.3d 409, 411-12 (Tex.App.--Austin 2000, no pet.).

2010See Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997); *826 Henderson v. State, 14 S.W.3d 409, 411 (Tex.App.-Austin 2000, no pet.).

2014La ter, in Hartman v. State, 946 S.W.2d 60, 62 (Tex.Crim.App.1997), the Court held that the multi-factor Kelly reliability test applies to Intoxilyzer test results.

2010See Hartman v. State, 946 S.W.2d 60, 63 (Tex.Crim.App.1997); *826 Henderson v. State, 14 S.W.3d 409, 411 (Tex.App.-Austin 2000, no pet.).

2014In Reynolds , the Court harmonized Rule 702’s requirements under Kelly with the Texas Transportation Code. 204 S.W.3d at 390-91 .

2010See Reynolds, 204 S.W.3d at 391 .

1993Forte v. State, 759 S.W.2d 128, 138 (Tex.Cr.App.1988) (quoting State v. Spencer, 305 Or. 59 , 750 P.2d 147 (1988); and McCambridge v. State, 712 S.W.2d 499, 504, n. 16 (Tex.Cr.App.1986)).

1993Forte v. State, 759 S.W.2d 128, 138 (Tex.Cr.App.1988) (quoting State v. Spencer, 305 Or. 59 , 750 P.2d 147 (1988); and McCambridge v. State, 712 S.W.2d 499, 504, n. 16 (Tex.Cr.App.1986)).

2010See TEX .TRANSP .CODE ANN . §724.061 (Vernon 1999)(authorizing admission of evidence that a person refused a request by an officer to submit to the taking of a breath or blood sample); Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App. 1988)(the jury may infer guilt from a defendant’s refusal to take a breath test); Burkett v. State, 179 S.W.3d 18, 26-27 (Tex.App.--San Antonio 2005, no pet.)(defendant’s refusal to take the intoxilyzer test implies he believed he would fail it because he thought he was intoxicated, and from such refusal, the jury may infer guilt).

2010See Tex.Transp.Code Ann. §724.061 (Vernon 1999)(authorizing admission of evidence that a person refused a request by an officer to submit to the taking of a breath or blood sample); Gaddis v. State , 753 S.W.2d 396, 399 (Tex.Crim.App. 1988)(the jury may infer guilt from a defendant’s refusal to take a breath test); Burkett v. State , 179 S.W.3d 18, 26-27 (Tex.App.--San Antonio 2005, no pet.)(defendant’s refusal to take the intoxilyzer test implies he believed he would fail it because he thought he was intoxicated, and from such refusal, the jury may infer guilt).

2006Thus, the intoxilyzer test results and the expert testimony were properly admitted because “they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove.” Id. at 97 .

2006Thus, the intoxilyzer test results and the expert testimony were properly admitted because "they are pieces in the evidentiary puzzle for the jury to consider in determining whether [defendant] was intoxicated at the time he drove." Id. at 97 .

2000See id.

1999The Austin Court of Appeals rejected this argument in Elliott v. State, 908 S.W.2d 590, 593 (Tex.App.—Austin 1995, pet’n ref'd).

2013Id.

2000See Harrell , 725 S.W.2d at 209 .

1996Rather, we are here confronted by an intoxilyzer test that is rendered admissible by statute, Tex.Rev.Civ.Stat.ANN. art. 6701Z-5, § 3(a) (Vernon Supp.1995), and that has long been admissible without any predicate showing as to reliability, see Slagle v. State, 570 S.W.2d 916 (Tex.Crim.App.1978).

1995Cf. Slagle v. State, 570 S.W.2d 916, 920-21 (Tex.Cr.App. [Panel Op.] 1978) (Because Art. 6701 l -5, § 3, provides for the admissibility of breath test results, the State does not need to establish as part of its predicate that the breath test examination is a scientifically reliable test before the results are introduced as long as the predicate provided for in Art. 6701 l -5 is satisfied). [3] The State argues that Harrell authorizes an intoxilyzer supervisor who did not administer the intoxilyzer test to testify about the last two prongs of the predicate discussed in Harrell , but this does

2014Id. at 437, 442 .

2006In Mechler , Judge Cochran stated, "In balancing the probative value of an intoxilyzer test result against its potential for creating unfair prejudice or confusion of the issues, the two most significant items in that balance are: 1) the actual test result itself and how much it exceeded the legal limit of 0.08% BAC; and 2) the time interval between the defendant's driving and the taking of the test." 153 S.W.3d at 444 (Cochran, J., concurring).

2010See TEX .TRANSP .CODE ANN . §724.061 (Vernon 1999)(authorizing admission of evidence that a person refused a request by an officer to submit to the taking of a breath or blood sample); Gaddis v. State, 753 S.W.2d 396, 399 (Tex.Crim.App. 1988)(the jury may infer guilt from a defendant’s refusal to take a breath test); Burkett v. State, 179 S.W.3d 18, 26-27 (Tex.App.--San Antonio 2005, no pet.)(defendant’s refusal to take the intoxilyzer test implies he believed he would fail it because he thought he was intoxicated, and from such refusal, the jury may infer guilt).

2010See Tex.Transp.Code Ann. §724.061 (Vernon 1999)(authorizing admission of evidence that a person refused a request by an officer to submit to the taking of a breath or blood sample); Gaddis v. State , 753 S.W.2d 396, 399 (Tex.Crim.App. 1988)(the jury may infer guilt from a defendant’s refusal to take a breath test); Burkett v. State , 179 S.W.3d 18, 26-27 (Tex.App.--San Antonio 2005, no pet.)(defendant’s refusal to take the intoxilyzer test implies he believed he would fail it because he thought he was intoxicated, and from such refusal, the jury may infer guilt).

2009Here, the State cites Griffith v. State, 55 S.W.3d 598, 602-08 (Tex.Crim.App. 2001) for the proposition that the portion of the videotape that shows Appellant’s requests for a lawyer when he was being asked to submit to the intoxilyzer test was admissible, as he had no right to a lawyer at that time.

2009Here, the State cites Griffith v. State, 55 S.W.3d 598, 602-08 (Tex.Crim.App. 2001) for the proposition that the portion of the videotape that shows Appellant's requests for a lawyer when he was being asked to submit to the intoxilyzer test was admissible, as he had no right to a lawyer at that time.

2003Jamail v. State , 787 S.W.2d 380, 383 (Tex. Crim.

2003Jamail v. State, 787 S.W.2d 380, 383 (Tex.Crim.App.1990), overruled in part on other grounds by Hardie v. State, 807 S.W.2d 319, 322 (Tex.Crim.App.1991). 4 .

2000Serrano paraphrases Erdman and states that "[wjarning D.W.I. suspects— even factually correctly — of consequences not contemplated in [the implied consent statute] could easily coerce suspects into submission to take the intoxilyzer test, and the protection afforded by the statute would be undermined.” Id.

2000Serrano paraphrases Erdman and states that "[w]arning D.W.I. suspects--even factually correctly--of consequences not contemplated in [the implied consent statute] could easily coerce suspects into submission to take the intoxilyzer test, and the protection afforded by the statute would be undermined." Id.

1993To hold consent presents only questions of fact would effectively insulate consent issues from appellate review. 2 III.BURDEN OF PROOF AT THE TRIAL LEVEL Although, evidence obtained as a result of the intoxilyzer test is non-testimonial in nature, Turpin v. State, 606 S.W.2d 907, 913-14 (Tex.Cr.App.1980), consent to an intoxilyzer test must be voluntary.

1993BURDEN OF PROOF AT THE TRIAL LEVEL Although, evidence obtained as a result of the intoxilyzer test is non-testimonial in nature, Turpin v. State, 606 S.W.2d 907, 913-14 (Tex.Cr.App.1980), consent to an intoxilyzer test must be voluntary.

2010The Court made clear, however, that it did not intend its holding to “sweep[] away an accepted rule governing the admission of scientific evidence.” Id. at 2533 .

2010The Court made clear, however, that it did not intend its holding to “sweep[ ] away an accepted rule governing the admission of scientific evidence.” Id. at 2533 .

2004Moreover, we note that O’Neal’s retrograde extrapolation testimony was not required in order to admit the intoxilyzer test results in this case because other evidence proved beyond a reasonable doubt that the accused was intoxicated when the offense occurred. (footnote: 6) See Forte v. State , 707 S.W.2d 89, 94-95 (Tex. Crim.

1988McCambridge, 712 S.W.2d at 502 ; Forte v. State, 707 S.W.2d at 91 .

1995See Gifford v. State, 793 S.W.2d 48 (Tex.App.—Dallas 1990), pet. dismissed 810 S.W.2d 225 (Tex.Cr.App. 1991); Harrell v. State, 725 S.W.2d 208 (Tex.Cr.

1995See Gifford v. State, 793 S.W.2d 48 (Tex.App.—Dallas 1990), pet. dismissed 810 S.W.2d 225 (Tex.Cr.App.1991); Harrell v. State, 725 S.W.2d 208 (Tex.Cr.App.1986).