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Board Certified - Criminal Law - Texas Board of Legal Specialization

Criminal Law Blog

June 16, 2006

If anybody asks you why you should not blow in the breathalyzer, ask them to imagine …

Imagine that you have been arrested for murder. 

The State of Texas claims that it has DNA evidence, ballistic evidence, and fingerprint evidence against you. 

Imagine that you are not rich, but you do have some resources and you certainly know you are not guilty of this crime.  Your lawyer recommends that you hire an expert witnesses to look at the State’s evidence. 

Ordinarily, in such cases, the expert for the defendant in a murder case can interview the State’s expert witnesses.  The defense expert typically can look at the methods that the State’s expert used to arrive at his conclusions. 

Now, imagine that in your case, the State’s expert witness refuses to disclose the methods he used to arrive at those conclusions. 

Not only that, the State’s expert refuses to let your expert look at the fingerprint that the State claims was made by your finger. 

Imagine further that the State’s expert refuses to allow your expert witness to look at the bullet removed from the victim’s body that was matched to a bullet that the State claims you fired from a particular gun. 

Imagine further that the State’s expert refuses to allow your expert to have any of the DNA evidence in question so that your expert can test for himself to determine whether you can be excluded as the person who the State says left DNA at the crime scene.

Now, does that sound fair?  Of course not!

But that is exactly what the State of Texas does in every DWI case in which the defendant blew into the breathalyzer.

Why do I say that?

I say that because the State of Texas does not disclose to defendants or their lawyers or their experts the source code which forms the basis of the computer program used in the breathalyzer to determine what your breath / blood alcohol content was.

That is not fair.  Your DWI defense lawyer cannot cross-examine a machine, obviously, and if the breathalyzer result is admitted into evidence, but the source code is not revealed, then you are being tried on evidence, but you don’t have the avenues of attack to which you are entitled. 

And that is unconstitutional. 

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