Kirsch v. State
306 S. W. 3d 738 (2010)
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Rule of Law:
A blood-alcohol concentration (BAC) test result obtained a reasonable time after driving is probative evidence of 'per se' intoxication at the time of driving, even without retrograde extrapolation testimony, provided it is accompanied by other evidence of intoxication that supports an inference the defendant was intoxicated while driving. An improper limiting instruction on such BAC evidence does not preclude a jury charge on the 'per se' theory if sufficient corroborating evidence exists.
Facts:
- At approximately 3:00 a.m., Harris County deputy sheriff Kirsch was driving a patrol car on a freeway frontage road when he collided with an 18-wheel tractor-trailer driven by Jesse Gomez.
- Data from the patrol car's 'black box' indicated Kirsch was driving 67-69 mph in a 50 mph zone and did not apply the brakes until less than one second before impact.
- Kirsch was rendered unconscious by the collision and transported to a hospital, where a paramedic noted an odor of alcohol in his blood.
- At the hospital, Kirsch behaved belligerently, slurred his speech, and was described in medical records as 'obviously intoxicated'.
- Approximately 80 minutes after the accident, a hospital-ordered blood test revealed Kirsch had a blood-alcohol level (BAC) of 0.10.
- Investigating deputies found two Smirnoff vodka bottle caps inside Kirsch's patrol car.
Procedural Posture:
- Kirsch was charged with driving while intoxicated (DWI) in a Harris County trial court.
- The trial court denied Kirsch's pretrial motion to suppress the blood-test results.
- During trial, the judge admitted the BAC test result into evidence with an oral limiting instruction to the jury.
- The jury received instructions on both the 'impairment' and 'per se' theories of intoxication and returned a general verdict of guilty.
- Kirsch, as appellant, appealed his conviction to the First Court of Appeals, arguing the 'per se' jury instruction was improper due to the limiting instruction.
- The Court of Appeals affirmed the trial court's judgment, holding the jury charge was proper.
- Kirsch then appealed to the Texas Court of Criminal Appeals, the state's highest criminal court.
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Issue:
Does a trial court err by submitting a jury charge on the 'per se' theory of intoxication when the defendant's blood-alcohol concentration (BAC) test result was admitted with a limiting instruction, but other sufficient evidence of intoxication at the time of driving also exists?
Opinions:
Majority - Cochran, J.
No. A 'per se' intoxication charge is proper when a BAC test result is supported by other evidence of intoxication at the time of driving, even if an improper limiting instruction was given. A BAC test result taken within a reasonable time after driving is highly probative of intoxication, and its sufficiency to prove 'per se' intoxication depends on corroborating evidence, not the absence of a limiting instruction. In this case, there was ample other evidence of intoxication, including Kirsch's erratic driving, speeding, failure to brake, belligerent behavior at the hospital, and the odor of alcohol. The trial court's limiting instruction was an improper comment on the weight of the evidence, but it did not legally prohibit the jury from using the BAC test result, along with the other evidence, to conclude that Kirsch was 'per se' intoxicated at the time he was driving.
Dissenting - Price, J.
Yes. The trial court erred because the jury was required to follow the limiting instruction, which effectively prohibited it from considering the BAC evidence for its numerical value. The instruction, regardless of the majority's grammatical analysis, limited the evidence's purpose to merely showing that Kirsch had consumed some unspecified amount of alcohol at some prior time, akin to evidence of the odor of alcohol. Without being able to consider the specific 0.10 BAC result, there was no evidence to support the 'per se' theory of intoxication (a BAC of 0.08 or more). Submitting the 'per se' charge created confusion and was a harmful error that warranted a new trial.
Analysis:
This case clarifies the evidentiary standard for proving 'per se' DWI in Texas, reinforcing that a BAC test result without retrograde extrapolation is sufficient for a jury charge if corroborated by other indicia of intoxication. The decision's primary significance lies in its treatment of an improper limiting instruction, establishing that such a trial court error does not automatically render the evidence insufficient to support a 'per se' theory. This holding strengthens the state's ability to prosecute DWI cases based on a combination of chemical and circumstantial evidence, while also serving as a caution to trial courts against issuing such legally baseless limiting instructions, which constitute an improper comment on the evidence's weight.
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