| The most useful resource in a DWI breath test case is | | | | below the legal limit at the time of driving. |
| an expert witness who can debunk the state's breath | | | | "Alcohol affects the brain in reverse order of how the |
| test machine and the "science" behind it. Unfortunately, | | | | brain develops. So the higher levels for brain function |
| most defendants in DWI cases cannot afford the | | | | such as judgment, logic and reason are affected first..." |
| added expense of retaining an expert witness to help | | | | In other words, alcohol affects one's mental faculties |
| tell their story to a jury. This article will show you how | | | | before it affects the physical faculties. If the driver |
| to turn the state's expert witness into your own expert | | | | followed the officer's instructions, asked appropriate |
| by taking advantage of the state's breath testing | | | | questions and answered questions intelligently, he |
| manual. | | | | exhibited control of his mental faculties. If he was in |
| In every DWI case in Texas in which a defendant | | | | control of his mental faculties, then, he had the normal |
| blew into the breath test machine, the state must put | | | | use of his physical faculties and any difficulty on the |
| an expert on the stand to testify as to the validity of | | | | field sobriety exercises must have been the result of |
| the test result. This expert, the technical supervisor, is | | | | some factor other than alcohol. |
| certified through the Texas Department of Public | | | | "Psychomotor skills are motor actions (physical |
| Safety (DPS) and must be familiar with the Texas | | | | faculties) proceeding directly from mental activity." |
| Breath Alcohol Testing Program Operator Manual, a | | | | This just serves to drive home the previous point. |
| manual published by the DPS. | | | | Logic dictates that if a person is in control of his mental |
| This manual is a gold mine of information that can be | | | | faculties that he must also be in control of his physical |
| used to impeach the accuracy of both the Intoxilyzer | | | | faculties. The technical supervisor will try to hem and |
| 5000 as well as the arresting officer. Knowing the | | | | haw around this logic but he must accept what's |
| material contained within the breath test manual can | | | | written in a manual that he testified was authoritative in |
| be the difference between a conviction and an | | | | the field of breath alcohol testing. |
| acquittal. | | | | "Depending on the various factors of absorption, |
| In order to use the state's manual to maximum effect, | | | | distribution and elimination of ethanol in the body, there |
| you must get the technical supervisor to testify that he | | | | are three possibilities when estimating the alcohol |
| or she was trained according to the manual and that | | | | concentration at a time prior to the test." |
| the state's manual is authoritative in the field of alcohol | | | | Those three possibilities are that at the time of the test |
| breath testing. Once the technical supervisor has made | | | | the alcohol concentration was lower, the same or |
| this admission, you can use the state's manual to | | | | higher than at the time of driving. In other words, the |
| create reasonable doubt in the jurors' minds about the | | | | state's own manual says that we can't know for |
| accuracy of the breath test and the "science" behind | | | | certain whether a driver's alcohol concentration was |
| breath alcohol testing. | | | | over the legal limit at the time of driving based on a |
| Here are four quotes from the state's manual that you | | | | single breath test performed sometime later. This is a |
| can use to turn the state's expert witness into your | | | | point that must be emphasized during cross |
| own expert witness: | | | | examination. |
| "The length of time the ethanol remains in the stomach | | | | These techniques may not be suitable in every DWI |
| before being passed on to the remainder of the | | | | breath test case, but the basic principle remains the |
| gastrointestinal tract can vary due to several factors." | | | | same - a DWI defense attorney must be familiar with |
| The most important of these factors is whether or not | | | | the training materials used by the witnesses who are |
| a person was drinking on an empty or a full stomach. | | | | going to testify that his client was driving while |
| With a full stomach, absorption of the ethanol into the | | | | intoxicated. |
| bloodstream is delayed for anywhere from 30 minutes | | | | If you've been wrongly arrested for DWI, you need an |
| to two hours. This means that a person's alcohol | | | | experienced DWI attorney to defend your rights and |
| concentration may continue to rise long after that | | | | restore your reputation. Contact Houston DWI |
| person has stopped drinking alcohol. For example, if a | | | | Attorney Paul B. Kennedy for more information and a |
| person blew a .09 and had eaten a meal while drinking, | | | | free consultation. |
| it is very possible that his alcohol concentration was | | | | |