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Click here for the full text of this decision FACTS:Dawn Kuretsch Stewart was convicted of driving while intoxicated. The trial judge allowed the state to present the results of two breath tests administered to Stewart eighty minutes after she was pulled over but disallowed the State’s retrograde extrapolation evidence. The Fourth Court of Appeals in San Antonio reversed Stewart’s conviction, finding that the results of the test were irrelevant without retrograde extrapolation and constituted no evidence to show that Stewart was intoxicated when she drove. The Court of Appeals also found that, by admitting the breath test results, the trial court encouraged the jury to conduct its own retrograde extrapolation and to decide the case based on facts not in evidence. The court concluded that the admission of the breath test results without retrograde extrapolation affected Stewart’s substantial rights. HOLDING:Reversed and remanded. The admission of the breath test results did not necessarily encourage the jury to engage in its own crude retrograde extrapolation because the jury did not need to establish Stewart’s exact blood alcohol concentration at the time that she drove. The jury only needed to believe beyond a reasonable doubt that either her blood alcohol concentration was 0.10 or more, or that she failed to have the normal use of her mental or physical faculties by reason of introduction of alcohol into her body, at the time she drove. The breath test results were properly admitted evidence to consider with all of the other evidence of intoxication to determine if Stewart was intoxicated at the time she drove. The court finds that the court of appeals erred in finding that the trial court encouraged the jury to decide the case based on facts not in evidence. The court disagrees with the state’s argument that the court of appeals erred in finding that the trial court improperly admitted Stewart’s breath test results because the Transportation Code creates absolute admissibility of breath test results. The state contends that the Texas Legislature has mandated the admissibility of intoxilyzer results in DWI cases, because Texas Transportation Code �724.064 provides that evidence of alcohol concentration shown by analysis of a person’s breath taken at the request of a peace officer is admissible. The court recently rejected this argument in Bagheri v. State, 119 S.W.3d 755 (Tex. Crim. App. 2003). The court explained that “the determination that breath tests results should be admissible in DWI prosecutions without the necessity of establishing the scientific basis for such tests under Daubert and Kelly does not relieve the State of the burden of showing that those tests results in any given case are relevant, in the sense that they accurately reflect the subject’s alcohol concentration at the time of the offense.” The court believes that the state met its burden by showing that Stewart’s breath test results were relevant. OPINION:Keasler, J., delivered the opinion of the court, joined by Keller, P.J., and Womack, Johnson, Hervey, Holcomb and Cochran, JJ. CONCURRENCE: Womack, J., filed a concurring opinion, in which Johnson, J., joins. “I join the opinion of the Court. I write only to emphasize that, because of the peculiar procedural posture of this appeal, that opinion does not resolve the problem that faces trial courts: whether to admit breath-test results without extrapolation evidence. This appeal presents only half of the problem, relevancy. As Judge Price’s opinion, post, points out, there are serious issues about the other half, weighing the relevancy value against possibly unfair prejudicial effect.” DISSENT: Price, J. “I write separately for two reasons: first, because the majority does not fully discuss the law governing the admissibility of the evidence, and second, because I believe the trial court erred in allowing the State to present the breath test results without demonstrating that the appellant’s blood alcohol concentration was greater than 0.10 while she drove. I dissent because I conclude that the appellant was harmed by the admission of the breath test results into evidence.”

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