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Click here for the full text of this decision FACTS:Dawn Stewart was arrested for DWI. She submitted two breath samples 80 minutes after driving. These samples showed a blood alcohol content of 0.160 and 0.154. Over Stewart’s objection, the trial court allowed the breath tests to be admitted into evidence. No retrograde extrapolation evidence was entered to demonstrate what relationship the results � taken 80 minutes after she drove � had to what Stewart’s blood-alcohol level may have been at the time she was stopped. Stewart appealed, and the 14th Court reversed. The 14th Court held that the breath-test results were irrelevant without retrograde extrapolation evidence. Also, by admitting the breath test results, the jury was encouraged to perform its own retrograde extrapolation. Admitting the breath tests without retrograde extrapolation evidence affected Stewart’s substantial rights. The Court of Criminal Appeals, however, reversed the 14th Court, holding that breath test evidence may be relevant without retrograde extrapolation evidence. The court further held that the breath tests did constitute evidence to show Stewart was intoxicated when she drove. Lastly, the high court ruled that the admission of the breath-test results did not encourage the jury to engage in its own retrograde extrapolation. The case is now before this court on remand. HOLDING:Affirmed. The court first determines whether admission of Stewart’s breath test results without retrograde extrapolation violated Texas Rule of Evidence 403 by being more prejudicial than probative. Her breath test results were probative: if she had a 0.160 blood-alcohol content 80 minutes after driving, a strong inference can be made that she had a blood-alcohol content of at least 0.10 � the legal limit at the time � when she was driving. Though prejudicial to Stewart, the breath-test results are not unfairly prejudicial, because the results related directly to the charged offense. The jury could not have been impressed in an irrational way. The court also finds that the jury could not have been distracted from the charged offense, regardless of the time the state devoted to presenting it as evidence. Also, as there was conflicting evidence regarding Stewart’s demeanor at the time of her arrest, as well as her performance on the field sobriety tests, the state needed the breath tests to prove its case that Stewart was intoxicated. Reviewing all of these factors, the court rules that the trial court correctly admitted the breath test evidence in this instance. The court additionally finds that the trial court did not err in denying Stewart’s requested jury instruction on the presumption of innocence. The court then finds that the trial court erred in letting the state misstate the applicable law during voir dire. The state repeatedly stated that the jury had to believe that the defendant “blew above .10,” rather than stating the jury had to decide what the defendant’s alcohol content was at the time she was driving. This was a misstatement of the law. A person commits the offense of DWI if the person had a blood-alcohol content greater than 0.10 at the time of driving.” Nonetheless, the court says it has “fair assurance” that the error did not influence the jury. The court upholds the trial court’s refusal to challenge a juror for cause, and the trial court’s refusal to submit a jury charge requested by Stewart. OPINION: Catherine Stone, J.; Stone, Green and Marion, JJ.

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