In Scillitani v. State, 297 SW3d 498 (Tex.App.--Houston [14th Dist.] 2009, rev'd in Scillitani v. State, No. PD 0069-10, June 30, 2010), the appellate court reversed a DWI conviction out of Fort Bend County on the grounds that there was no direct evidence to support the state's contention that the defendant was operating a motor vehicle while intoxicated. In Scillitani, a trooper came across a single car accident and found Mr. Scillitani, who admitted to driving, at the scene. The trooper administered roadside coordination exercises and decided that Mr. Scillitani was intoxicated. The trooper's opinion was bolstered when a preliminary breath test showed the driver to have an alcohol concentration in excess of the legal limit. The state did not present any evidence, however, to show when Mr. Scillitani drove the vehicle or how much time elapsed between the accident and the time the officer arrived.
The appellate court noted that:
[a]lthough this evidence supports a finding that appellant was intoxicated at the accident scene upon Trooper Hackney's arrival, neither this evidence nor any evidence introduced at trial constitutes independent evidence of (1) how recently the vehicle was driven or (2) how much time elapsed between the accident and Trooper Hackney's arrival.Mr. Scillitani's victory was short-lived, however, as the Court of Criminal Appeals held in Kuciemba v. State, 310 SW3d 460 (Tex.Crim.App. 2010), that "[b]eing intoxicated at the scene of an accident in which the actor was a driver is some circumstantial evidence that the actor's intoxication caused the accident, and the inference of intoxication is even stronger when the accident is a one-car collision with an inanimate object."
In his dissent, Judge Lawrence Myers notes that the evidence cited by the Court in determining that the evidence was sufficient to link Mr. Kuciemba's intoxication to his driving, was sufficient only in showing that Mr. Kuciemba was not driving his car in a safe manner. He pointed out that the state never offered any evidence to establish the time of the accident nor the time gap between the accident and the arrival of the officer.
The problem with the Court's decision is they are asking a jury to presume that if a motorist is intoxicated at the scene of a one-car accident then it stands to reason the motorist was intoxicated while driving his car - when the only presumption that a juror is able to make is that the defendant is innocent. The Court's logic also fails to take into account that a driver could still be in the absorption phase when the accident occurred or that the driver could have imbibed the spirits after the accident.
In its rush to overturn a case that might make it harder for the state to convict a motorist of driving while intoxicated, the Court neglected to note that the officer could have worked his way out of a jam by noting whether the engine was warm or by asking Mr. Kuciemba when the accident occurred. The duty of the Court is to ensure that the rights of the citizenry are protected, not bailing out the cops.