Limits of Opinion Testimony on DWI Breath Scores

DWI breath alcohol testing involves some fairly complex scientific principles. Because they involve scientific principles, not just anyone can give opinions on their outcome. Opinions on the outcome of the tests are limited to the expert testimony.

The New Mexico Court of Appeals case of State v. Armijo addressed this issue in relation to an officer’s opinion regarding the severity of a DWI score. Notably, the scores were below the presumed limit of .08. Though an officer, with a proper foundation, could testify to the actual breath score, an officer generally cannot offer opinions on that score.

The relevant facts and issues as set forth by the Court of Appeals are pretty straightforward. The defendant was charged with a DWI. The officer administered a breathalyzer test. The defendant’s breath scores at that time were .05 and .06 grams per 210 liters of breath.

At trial, the breath scores were admitted which is generally acceptable assuming the proper foundation has been laid. However, the prosecutor then asked the officer his opinion about those scores. Specifically, the officer was asked on direct examination if the score was “a particularly high breath score.”

On a re-direct examination, the State again asked for the officers opinion on the breathalyzer asking, “what does that indicate to you?” The State then followed with yet additional opinion questions asking the officer whether “a .06/.05 [was] consisted with defendant’s admission of one beer?” When the officer said, “no,” the State asked, “is a .06.05 consistent with more than one beer?”

The attorney for the defendant objected repeatedly to the inadmissible opinion testimony. The trial court sustained the defendant’s objections, and instructed the jury to disregard the testimony. The defendant was convicted of driving under the influence.

It was clear that the opinion evidence should not have been admitted. However, the Court of Appeals had to determine whether the inadmissible evidence amounted to incurable error?

It is well accepted that curative instructions to the jury immediately following inadmissible testimony will be deemed to have “cured” any prejudicial effect. The Court of Appeals stated the principle as follows: “[g]enerally, a prompt admonition from the court to the [j]ury to disregard and not consider inadmissible evidence sufficiently cures any prejudicial effect which might otherwise result.”

However, the Court explained that when “inadmissible testimony is intentionally elicited by the prosecution,” the testimony can constitute an incurable or prejudicial error, requiring a new trial. This can be a fine line. For instance, the court must determine whether a question was asked knowing that an inadmissible response would be given as opposed to asking the same question without anticipating an inadmissible response.

The court sets out an example of the question, “when did you first meet the defendant.” In one case, the prosecutor is expecting a date and gets the response “when he was in prison.” This would likely be curable. On the other hand, the same question asked following prior grand jury testimony where the answer is given “when he was in prison” would likely be deemed to be an intentionally elicited and inadmissible response making it incurable.

It does not take much imagination to see how this might be a close call depending upon the situation and more importantly what has and has not been disclosed to the defendant. In this case, however, it was not a close call.

Here the State “drew repeated objections to questions intended to elicit” the officer’s “unqualified and inadmissible opinion” about the defendant’s breathalyzer scores. As such, the Court explained that the State intentionally elicited the inadmissible testimony thereby making it incurable through an instruction by the judge to disregard it.

The Court then had to decide if the officer’s inadmissible testimony “could have induced the jury’s verdict.” Since no other information regarding the breath scores had been introduced, the officer’s unqualified testimony may in fact have been the only information the jury had about assessing breath scores.

In other words, because the jurors didn’t have other evidence to assess breath scores, they may have used the officer’s testimony in their determination that the defendant was DWI. As such, the Court found that there was “a reasonable probability that the jury’s verdict was the product of inadmissible testimony” and ordered a new trial.

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