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B. PREJUDICE VERSUS PROBI'IYUnder Rule 403, Fed. Roles. Elid. any expat opinion concerning the resulls of the tests relating to those relating to Mr. Defendant's pllysiologicalcondition at some time prior have limited relmrlnce to tbis case. Thc wsc~lts, sin~ply because they are "sientiEc," mill cause a jury to convict wherethat july might otherwise not convicf wifhout the ~~nreliable scientific evidence.Neither the subject test nor tl~c refera~cesru~~pledc\~ice were kept at a known temperature and required by Texas Breath NcoholTes~Reg~lations,Tex. Admin. Code See. 19.3(c) Thus, the substantidprejudicid effect of those results ouhveigh the p~nbativevd~~e of the resctlls on Ute issue of whetl~mDefendant co~nmitted the offense charged. Thus, the breath test results fhemselves have wy little probity because of the defective procedures utilizedIII obtaining the breath test result.<strong>The</strong> assumption that breath alcohol concent~rltion at the time of arrest was greater than or equal to breath dcohol cormcent~rltio~l at LC tinle of thelest is at odds with the presumption of i~inocerrce and with the holding inilfflia u. Stale? supra. <strong>The</strong> purpose for tlre adn~ission of breath test results inanypro,rosecution for DWl is for the Shte to sl~ow the physiological stah~s of theindividual acc~~sed at the earlier point in timewheuhe ws driving. Tilereis no imbntfable presunlption in Tern bat Mx Defendant's breath test score of .08 or Iligher taken at the station after arrest is proof that he was dri!~ing wlde intoxicated at an earlier point in time111.PRAYXRUnder the facls presented in this case, the breath test iitselEshould not he admitted since its probity is low and it cannot be related to the events inquestion Additionally, the test is not adniisslble because its underlying theo~y rras not correctly applied on the occasion in question. L~kewise, theb~eath test evidence becomes less relevant to the proceedings the fnrtller $1 rime from the ntmt its resulls were takcn.WHHREFORE Defendant pmys that the court will set Ibis mntter douw for a hewing, and opon hearing punumlt to Roles 102,403 and 702 Rules ofElridenee ;u~dillafa u. Stnte, sslrplur, and order thatk the results and any ophlion coaccrning those ~esnlts as they relate to W. Defeudm~t's earlierpl~ysiological condition be suppressed; and8. the breath test results be suppmed.Respccthdly submitted,GEORGE SCILW\IEN401 S. hesaSan Antonio, Texas 78205Telepl~o~~e: 210-226-8021Pacslmile: 210-224-5722State Bar No. 17727500ATl'ORi\%Y FOR DEFEiDAhTCERTIFICATE 01: SERVICEI, George Schwmeu, do hereby ccrhfy that on Uus the - day of , 2 0 0 1 , a copy of thisMotion to S~~ppress nw delivered to the Count). Attorney by United States Postal Sewice this the - day of,2001.GEORGE SCHARMEN18 VOICE FOR WE DEFENSE WWW.TCDLA.COM OCTOBER 2001
~~ ~.George %bnrt~re#r-gmdriafcdfm~~~ St Xny9 U,ritw~iiySciiool of&m iw Smrd~rfo~~io, Bws hi I973 nJer lwni1i.e mei~rdn McbeIot9dwee Ine~dS~ntSo~~th~~w %tmStnI~ U,rirwsi@ it, Sou Jlnrca~: Tern m 1970 Geom rma adfnzIIedf8 fliePmclice oflaw i,t Term in 1973," -~~ ~111 1993 Geom an: &dreW?ed bv UM ~&m~&~dofrea(t~~bectnlimlio?tiriuril!n?knn fir f&i &rGenm uusa/so 6Mn/cem'Redbl*OCTOBER ZOO1 WWW.TCDLD..COM VOlC6 FOR ME OEllNSE 19
Page 3 and 4: COLUMNS6 President's Message7 Capit
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Page 7 and 8: ALR LawHB 63 - Cicense Suspension P
Page 9: vmitted with E e yyears of the date
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Page 17: in a particular case satisfies the
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