So another Bill has surfaced that would attempt to take away the constitutional rights of Texans and anyone else driving through this State. This piece of proposed legislation would arguably remove the "innocent until proven guilty" presumption and replace it with a presumption that the State could use to argue the driver was intoxicated if he or she was stopped, arrested, and provided a blood or breath sample greater than .08 within one and one-half hours of that arrest.
House Bill 170 is another piece of legislation aimed at making the State’s job of convicting its citizens easier and shifting the burden to the Defendant to prove that he or she is in fact not guilty. I for one can say that I am not interested in living in a place where there is no presumption of innocence and where the burden is on me to prove that I’m not guilty of a crime. In relevant part, House Bill 170 reads as follows:
Article 38.24 Evidence of Alcohol Concentration
(a) In this article, “offense relating to the operating of a motor vehicle while intoxicated” and “offense of operating a watercraft while intoxicated” have the meanings assigned by Section 49.09, Penal code.
(b) For purposes of the prosecution of an offense relating to the operating of a motor vehicle or watercraft while intoxicated, it is presumed that the person had an alcohol concentration equal to or higher than 0.08 at the time of the offense if that level of alcohol concentration is shown by an analysis of the specimen of the person’s breath, blood, or urine taken from the person not later than 90 minutes after the time of the person’s arrest.
To be clear, this section is not currently in the Texas Code of Criminal Procedure and is only proposed legislation, but we all need to hope that it does not pass, unless of course you are interested in giving up more of your constitutional rights and protections.
For others like me who are interested in tracking the life of House Bill 170, this website shows when it was introduced, and how activity on it compares to those of other pieces of proposed legislation.
In general, a presumption is a fact assumed to be true under the law and they are typically used to relieve a party from having to prove the truth of the fact being presumed. As Jamie Spencer pointed out regarding retrograde extrapolation:
Retrograde extrapolation is the mathematical/scientific process by which an estimated BAC range for the time of driving is deduced/guessed by taking the BAC at the time of the test, the time since driving and other factors. These factors include when the suspect drank his last beer, .eg., to his last meal, and other considerations.
These are ultimately unknown factors no matter what the pre field sobriety test interview question and answers reveal from the defendant. And therefore, there’s room for some of that old reasonable doubt defense attorneys like to try and raise.
Since this is potentially a problem for the prosecution, they want to write into the law an unscientific instruction that allows them to argue that any test over .08 given within an hour and a half of driving automatically gives them a presumption of guilt.
To conclude, this is another piece of legislation being propelled forward by those who would favor arresting everyone and shifting the burden of proof to them to show their innocence. As I have requested in the past, if you are interested in demonstrating involvement in your government, asking your State Representative and Senator to vote no on this legislation is a good start.