The Bexar County District Attorney’s office has recently started informing defense attorneys that they are no longer calling the Technical Supervisor that has been in charge of the City of San Antonio’s breath test machines. This could impact hundreds of DWI and other intoxication related offenses in San Antonio and Bexar County.
There are several incidents that led to this decision, but because of statements she made while testifying and several allegations that she has made against her competitor, which may not be true, the District Attorney’s office believes that she is no longer a credible witness.
What Does a Technical Supervisor Do?
According to the State of Texas, “Technical Supervisors are trained forensic scientists charged with the responsibility of administering, regulating, and enforcing all aspects of breath alcohol testing within their assigned area.” The technical supervisor also regularly testifies in court on cases where a breath test is being used as evidence. They are able to tell the court whether or not the breath test machine was working properly, how it was maintained, how the reference samples (used to make sure the machine is properly calibrated) are prepared, and also about the effect alcohol may have on a person and how a person’s breath alcohol concentration (BAC) may have changed between driving and being tested.
Why Does This Matter?
Without a technical supervisor, breath tests on impacted cases can’t be used in court.
The state has to prove that a person is intoxicated to uphold a conviction for DWI, intoxication assault, or intoxication manslaughter, and other intoxication offenses. There are 3 ways the state can prove that a person is intoxicated. 1. Showing the persons BAC is .08 or higher (using a blood or breath test) 2. Showing the person lost the normal use of their mental faculties because of alcohol or drugs or 3. Showing the person lost the normal use of the physical faculties because of alcohol or drugs.
Without a technical supervisor to testify that the machine was working correctly, the DA’s office will not be able to use the breath test in court. Without the breath test, they will have to prove intoxication by proving that the driver lost the normal use of their mental or physical faculties because of intoxication. That’s a lot harder to do than showing the jury a breath test with a BAC above .08.
Because of the “No Refusal” policy in Bexar County and San Antonio, prosecutors and jurors are both accustomed to having a BAC result of .08 or higher in intoxication cases.
Without a breath test that can be used in court, hundreds of DWI and other intoxication cases, are going to be much harder for the District Attorney’s Office to prosecute.
Whose Cases Will Be Impacted?
If you were arrested by SAPD for an intoxication offense, like DWI, and you provided a breath sample, your case will probably be impacted. This will not directly affect cases where the Bexar County Sherriff’s Office was the arresting agency because they have a different technical supervisor. Cases involving Quality Forensic Toxicology (used by Bexar County Sheriff’s Office) may be impacted if the allegations made by the current technical supervisor turn out to be true. It also does not impact any case where the state will be relying on a blood sample to show BAC or drugs.
How Long Will This Last?
It’s not clear how long this will last. Currently, the technical supervisor has a contract with the City of San Antonio and the San Antonio Police Department. I don’t know when that contract expires or what the city is trying to do to get out of that contract and find another technical supervisor to take over. Until there is a new technical supervisory, there is going to be an issue.
What Can You Do If You Have a DWI Case Pending?
If you currently have a DWI or other intoxication case pending, call your attorney to find out if your case may be impacted by this and get advice on what you should be doing in light of this.
Sean Henricksen Law Firm
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