Judges weigh admissibility of breath tests

09/19/2003 12:00 AM

By Ihosvani Rodriguez
San Antonio Express-News

A controversial court opinion that forces prosecutors to drop breath test results from most drunken driving trials in South Texas was brought before the state's highest criminal appeals court Thursday.
Eight of the nine judges from the Texas Court of Criminal Appeals came to San Antonio for the hearing at the St. Mary's University Law School, where lawyers argued the opinion, commonly referred to as the "Stewart case."

The legal opinion — based on a decision rendered in January by the local-level 4th Court of Appeals — prohibits prosecutors from using the results of breath tests during most trials involving driving while intoxicated charges.

Since January, defense lawyers have cited the Stewart case in many DWI cases, causing prosecutors to either dismiss the charges or go to trial without the results.

The Stewart case played a vital role in May in the acquittal of San Antonio Police Officer Israel Castro. A breath test taken after Castro was stopped in February 2002 recorded his blood-alcohol content as 0.17, more than twice the legal limit, but those results were not revealed to a jury.

Perhaps serving as a testament to how greatly the Stewart case has divided the legal community, about 350 people attended Thursday's hearing. The audience included local law students, prominent defense lawyers, state and county judges, prosecutors and several of the justices from the 4th Court of Appeals who issued the opinion in January.