The First Court of Appeals erred in permitting a jury charge for per se intoxication when evidence of appellant’s blood alcohol level was admitted pursuant to a limiting instruction and there was no evidence that appellant was intoxicated per se at the time he was driving the automobile.
Kirsch raised many issues on appeal, but the CCA only granted review on one aspect of the court of appeals opinion. Kirsch crashed his car and this resulted in a head injury. At the hospital his blood tests showed a blood-alcohol level of .10 approximately 80 minutes after the accident. The State introduced the blood test results, but Kirsch requested a limiting instruction that the evidence could only come in to show consumption of alcohol so, according to Kirsch, there was no evidence showing blood alcohol content at the time Kirsch was driving. The trial court instructed the jury on the definition of intoxication under a per se theory and a loss of normal use theory. The court of appeals held in a published opinion that the un-extrapolated breath test results were probative evidence under both theories of intoxication. Consequently, the limiting instruction was erroneous, and the trial court’s definition of intoxication was not erroneous as the jury could properly consider the test results for both theories of intoxication. Here’s a link to the court of appeals case info.
[I think it's important to boil this issue down to what it really is - Can the trial court instruct the jury on a theory of per se intoxication when the State does not introduce evidence of retrograde extrapolation? We know retrograde extrapolation is not required for the admission of the results. Now we'll find out if it also goes into the jury charge. Have they decided if unextrapolated breath tests can be sufficient evidence of intoxication? If not, that seems to be on the way.]
