In light of the breath test machine scandal involving disgraced former technical supervisor Dee Wallace, the time has come to request specific verdicts on any per se (breath test result of .08 or higher) DWI case.
The general verdict form asks the jury to decide whether or not the citizen accused is guilty of driving while intoxicated. Although the DWI statute defines intoxication three ways: loss of normal use of mental faculties, loss of normal use of physical faculties and alcohol concentration of .08 or higher - a citizen may be convicted by a non-unanimous decision. In simpler terms, the jury does not have to be unanimous as to how the citizen was intoxicated, they only have to be unanimous as to whether the citizen was intoxicated.
And this brings us to our problem. The Texas DPS announced that all breath tests conducted on the machines under Ms. Wallace's watch are now invalid. Unfortunately, because Texas does not require a specific verdict on a DWI case, it is impossible to know how many guilty verdicts were rendered on the basis of one of those (now invalid) breath tests. Now it's up to the Court of Affirms to decide that although the tests were invalid, it amounted to harmless error.
With a specific verdict form, however, we could go back and see on what definition the juries relied upon in reaching their decisions. A specific verdict form would require a jury to reach a unanimous decision as to the method of intoxication, not just the result. This scandal could provide the fuel to make the change.
If you've been arrested for DWI, contact my office today.