Opinion issued November 20, 2014.




                                      In The

                               Court of Appeals
                                      For The

                          First District of Texas
                             ————————————
                               NO. 01-13-00505-CR
                            ———————————

                  KARL FREDERICK SCHULTZ, Appellant
                                         V.
                       THE STATE OF TEXAS, Appellee


           On Appeal from the County Criminal Court at Law No. 1
                            Harris County, Texas
                        Trial Court Case No. 1802555


                CONCURRING AND DISSENTING OPINION

      Are test results from a breathalyzer machine that has been reliably used for

many years in a fixed location still reliable when the machine is moved into a

police van, jostled through the streets of Houston, and used in admittedly varying

ambient air conditions? It depends. While it is possible that the breathalyzer’s test
results may be reliable in a mobile environment, the State in this case did not make

a sufficient showing of reliability to meet its burden to establish admissibility of

the mobile test results under Rule 702. I, therefore, respectfully dissent. But I

concur in the Court’s conclusion that the test results did not violate article 38.23 of

the Texas Code of Criminal Procedure.

                                Factual Background

      The Houston Police Department has used breathalyzer machines, known as

Intoxilyzer 5000s, at its police station for many years to measure the alcohol

concentration in suspects’ breath samples. At some point, the police chose to

relocate the Intoxilyzer 5000s into police vans known as Breath Alcohol Testing

vans (BAT vans). The Intoxilyzer 5000s are mounted inside the vans to be used on

location at vehicle stops.

      In January 2012, Schultz was detained for suspicion of drunk driving, and a

BAT van was summoned. The police moved Schultz to a nearby gas station, where

the BAT van met them and Schultz’s blood alcohol content was tested. The mobile

Intoxilyzer 5000 measured Schultz’s alcohol concentration at considerably higher

than the concentration sufficient to support a conviction.

      Before trial, Schultz made an oral motion to suppress the results of the test.

The court set it for a hearing. Schultz objected that the scientific predicate for

admissibility of the breath test had not been satisfied under Rules 702 and 705 of


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the Texas Rules of Evidence. He also objected that the test results were

inadmissible under article 38.23 because they were in violation of DPS standard

operating guidelines. See TEX. CODE CRIM. PROC. ANN. art. 38.23 (West 2005). He

concluded that the State could not “establish the predicate or the admissibility of

the breath test in this case.”

       At the hearing, the trial court heard evidence regarding the protocol for

administering a breath test on a suspect. Officer Ciers, who is a certified operator,

observed Schultz for the required 15 minutes before administering the breath test.

Officer Ciers then submitted the machine to a circuitry test, which it passed. He

also tested the level of identifiable interferents in the ambient air, which the

machine measured at 0.00 four times. Officer Ciers took two breath samples from

Schultz; before each, he purged the system with ambient air.

       There also was testimony concerning prior testing and maintenance on the

Intoxilyzer 5000 that Officer Ciers used to measure Schultz’s alcohol

concentration. Technical Supervisor Oliver testified that he had inspected the

machine one week before Schultz’s arrest, in accordance with a monthly inspection

schedule. He checked the machine’s filter for interferents—four substances that

could contaminate a breath sample and possibly elevate the alcohol reading. The

inspection protocol does not test for all possible interferents, only those four




                                         3
specified substances. Oliver verified that the interferent detection system was

properly operating and none of the four interferents were inside the machine.

      The State did not offer evidence of the relocation history of the machine. We

do not know when the machine was relocated to the BAT van. Nor was there

evidence of whether it was moved only once or repeatedly between the police

station and the van or between vans.

      Before Schultz’s test, the machine had not been recalibrated for six months.

The machine was not recalibrated when it was moved into the van, and therefore

had been relocated at least once without further recalibration.

      The State concedes that under State v. Esparza, 413 S.W.3d 81 (Tex. Crim.

App. 2013), it bore the burden under the Rules of Evidence to “prove the

evidentiary predicate for the admissibility of [this] scientific evidence.”

                                The Intoxilyzer 5000

      The Intoxilyzer 5000 utilizes infrared spectrophotometry to measure ethyl

alcohol in breath samples. It has been used by police departments across the

country for years and, when its test results have been challenged in court,

repeatedly found to be sufficiently reliable. See, e.g., State v. Anderson, 175 P.3d

788, 794 (Idaho 2008) (“[T]he Intoxilyzer 5000 was approved by the Idaho State

Police almost two decades ago and is still in use.”). Until recently, the Houston

Police Department has used the Intoxilyzer 5000 at a fixed location—inside the


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police station. And the test results from the immobile Intoxilyzer 5000 have been

used in Harris County courts for years as evidence of the ethyl alcohol

concentration in suspects’ breath samples, stated as a numerical percentage. See,

e.g., Heeth v. State, No. 01-94-00975-CR, 1997 WL 212268, at *2 (Tex. App.—

Houston [1st Dist.] 1997, no pet.) (mem. op., not designated for publication).

       By contrast, portable breathalyzers—known as Passive Alcohol Sensors—

traditionally have been used only to confirm the presence of alcohol in a suspect’s

breath sample; the portable machines have not been determined to reliably measure

the concentration of alcohol in breath samples. See Adams v. State, 156 S.W.3d

152, 156 (Tex. App.—Beaumont 2005, no pet.); Fernandez v. State, 915 S.W.2d

572, 576 (Tex. App.—San Antonio 1996, no pet.).

       By moving its Intoxilyzer 5000 into a mobile van, the police might achieve

the best of both worlds: portability and admissible alcohol concentration results.

But no Texas appellate court—nor any other appellate court that I have located—

has addressed whether the Intoxilyzer 5000 can produce reliable results when

removed from its fixed location or, if it can, the conditions required to obtain

reliable test results.

       Technical Supervisor Oliver testified that the manufacturer does not produce

any literature or instructions regarding use of the Intoxilyzer 5000 in a mobile

environment. There was evidence that members of HPD have raised questions


                                         5
about the reliability of the Intoxilyzer 5000 results when used in a mobile

environment. Those questions specifically concerned the effect of heat on the

machine. Oliver testified that, at the request of the Harris County District

Attorney’s office, he ran a “variety of tests” on four BAT vans for excessive heat

using breath samples with four different levels of alcohol concentration. He ran

close to 250 tests on the machines. Oliver testified that the results were valid; the

machines would not allow testing when it got too hot because they would fail the

circuitry check. When the temperature was “just below whatever the temperature is

[that causes the machines not to produce test results],” the machines would

produce “slightly lower results than what they should have been.” When the

machines were overheated and subsequently cooled, they did not produce false

positives.

      The State did not introduce these test results nor did Oliver provide details

on the different test conditions. Oliver did not indicate whether he tested the

machine to evaluate the effect of varying ambient air conditions on the accuracy of

the test results. Nor did Oliver identify any published literature on the effect of

ambient air temperatures or varying ambient air conditions on the machines. The

Intoxilyzer 5000 used in Schultz’s test was not one of the machines involved in

Oliver’s tests.




                                         6
      During the hearing, Schultz presented evidence that there is another

breathalyzer available to police departments: the Intoxilyzer 8000, which also is

manufactured by the same company. It is marketed as a mobile Intoxilyzer

specifically designed for use in police vans. While it utilizes infrared

spectrophotometry like the 5000 model does, the marketing brochure describes the

8000 machine as a more advanced model than the Intoxilyzer 5000.1

                         Admissibility Under Article 38.23

      Article 38.23 of the Texas Code of Criminal Procedure prohibits the

introduction of evidence obtained in violation of the Constitution or laws of the

United States or the State of Texas in a criminal trial. TEX. CRIM. PROC. CODE

ANN. art. 38.23 (West 2005). The Court of Criminal Appeals in Atkinson stated

that compliance with DPS regulations—which the Court also called rules—is

mandatory for admissibility of the alcohol tests under article 38.23. Atkinson v.

State, 923 S.W.2d 21, 23 (Tex. Crim. App. 1996) abrogated on other grounds by

Motilla v. State, 78 S.W.3d 352 (Tex. Crim. App. 2002). I agree with the Court that

the DPS regulations function as a set of rules and compliance with them is


1
      The brochure describes the Intoxilyzer 8000 as “fully mobile” and specifically
      advertises its “rugged case.” Neither attribute is advertised on the brochure for the
      Intoxilyzer 5000. The trial court erroneously refused to admit the brochure for the
      limited purpose of the Rule 104(a) hearing. I refer to it as part of the procedural
      history of the case. I do not rely on it to reach the conclusion that the State did not
      meet its burden of proof.

                                             7
mandatory. 2 See Scillitani v. State, 343 S.W.3d 914, 922 (Tex. App.—Houston

[14th Dist.] 2011, pet. ref’d) (holding Intoxilyzer’s results were admissible because

they were obtained in conformity with governing regulations); Scherl v. State, 7

S.W.3d 650, 652 (Tex. App.—Texarkana 1999, pet. ref’d) (“[I]ntoxilyzer test

results are admissible when performed in accordance with the Transportation Code

and the Texas Department of Public Safety regulations.”).

      I concur with the Court that the test results were admissible under article

38.23. Under subsection (a) of Rule 19.4 of Title 37 of the Texas Administrative

Code, the use of the Intoxilyzer 5000 for breath-alcohol testing must be approved

by the Scientific Director. 37 TEX. ADMIN. CODE § 19.4(a). Proof of that approval

is therefore necessary for breath-alcohol testing “to be used for evidentiary

purposes.” Id. (“All breath alcohol testing techniques, methods and programs to be

used for evidential purposes must have the approval of the scientific director.”).

      The Scientific Director’s approval is not the only condition for admissibility.

If the Scientific Director’s approval ends the inquiry, the State would not have to




2
      In addition to the reasons cited by the Court, this result is consistent with Atkinson,
      which held that the State had to comply with DPS’s requirement that a technician
      must continuously observe the person tested for at least 15 minutes before
      administering the test. 923 S.W.2d at 23. Normally, non-compliance with a
      regulatory rule would not require automatic exclusion, but the statute in question
      specifically requires compliance with DPS “rules.” Id. at n. 1. The 15-minute
      delay provision is found in section 19.4(c)(1) of the Administrative Code.

                                             8
comply with the remainder of the regulations. Such a rule would be contrary to

Atkinson’s holding that the tests must comply with a 15-minute waiting period.

      Therefore, we must also examine whether DPS’s “guidelines,” like DPS’s

regulations, operate as rules within the meaning of section 724.016 of the Texas

Transportation Code, and therefore must be satisfied as a condition of

admissibility. Atkinson does not answer this question; it addresses DPS regulations.

The State argues that these “guidelines” are merely internal policies that do not

appear in the Administrative Code or the Texas Register. According to the State,

only those regulations reflected in the Administrative Code constitute “laws” under

article 38.23 or “rules” under section 724.016 of the Texas Transportation Code.

      Schultz argues that sections 1.1 and 1.2 of the “Standard Operating

Guidelines for Technical Supervisors” (SOGs) are mandatory and should be

treated as DPS “rules” and “laws.” Section 1.1 states that the technical supervisor’s

“official inspection . . . can only be conducted at the evidential testing location.

Each part of the inspection shall occur at the testing location and includes not only

the instrument, but the associated equipment and the testing environment as a

whole.” Section 1.2 provides that the technical supervisor “shall” conduct a

“complete inspection . . . each time an instrument is placed into service or returned

to service at a testing location.” Both are mandatory.




                                          9
      The SOGs are adopted pursuant to Rule 19.4(f) of the Administrative Code,

which grants the Scientific Director power to issue “directives, orders and

policies.” A footnote on the first page of the SOGs equates the guidelines with

“policies.” The title, “guidelines,” suggests they are not rules, but the word is

modified by the adjective “standard” suggesting that they are mandatory rules.

Looking to the content of the only page in the record, some provisions contain

mandatory language, but other sections contain permissive language.3

      Given this language, and in absence of the remainder of the SOGs indicating

a contrary interpretation, I would not treat the SOGs as “rules” for purposes of

section 724.016 of the Texas Transportation Code or as “laws” for purposes of

article 38.23. In conclusion, admissibility of breath-alcohol tests under article

38.23 requires compliance with DPS regulations and therefore requires approval

from the Scientific Director of the testing procedure, but does not require

compliance with the guidelines.

                           Admissibility Under Rule 702

A.    The test for admissibility of breath test results

      Under Texas law, the State must prove that breath-test results “accurately

reflect the subject’s alcohol concentration at the time of the offense.” Stewart v.

State, 129 S.W.3d 93, 98 (Tex. Crim. App. 2004) (quoting Bagheri v. State, 119
3
      See, e.g., SOG § 1.1.3 (“A Technical Supervisor may conduct additional tests or
      checks of the instrument and simulator as he/she deems necessary.”).


                                            10
S.W.3d 755, 760 (Tex. Crim. App. 2003)). To be admissible, the Intoxilyzer

5000’s test results must satisfy the requirements of Kelly v. State, 824 S.W.2d 568,

573 (Tex. Crim. App. 1992), as modified by the Texas Transportation Code and

Reynolds v. State, 204 S.W.3d 386, 389–91 (Tex. Crim. App. 2006).

       In Kelly, the Court of Criminal Appeals held that the State must demonstrate

by clear and convincing evidence three criteria for scientific evidence to be

sufficiently reliable to be admissible: (1) the underlying scientific theory must be

valid; (2) the technique used to apply the theory must be valid; and (3) the

technique must have been properly applied on the occasion in question. Kelly, 824

S.W.2d at 573. Kelly also provided a list of seven non-exclusive factors for

examining reliability. 4 Id. Later, in Hartman v. State, 946 S.W.2d 60, 62 (Tex.

Crim. App. 1997), the Court held that the multi-factor Kelly reliability test applies

to Intoxilyzer test results.




4
       The Kelly Court identified the following non-exclusive list of relevant factors for
       consideration: 1) the extent to which the underlying scientific theory and
       technique are accepted as valid by the relevant scientific community if such
       community can be ascertained; 2) the existence of literature supporting or
       rejecting the underlying scientific theory and technique; 3) the clarity with which
       the underlying scientific theory and technique can be explained to the court; 4) the
       potential rate of error of the technique; 5) the availability of other experts to test
       and evaluate the technique; 6) the qualifications of the expert testifying; and 7) the
       experience and skill of the person(s) who applied the technique on the occasion in
       question. Kelly v. State, 824 S.W.2d 568, 573 (Tex. Crim. App. 1992).


                                             11
      In Reynolds, the Court harmonized Rule 702’s requirements under Kelly

with the Texas Transportation Code. 204 S.W.3d at 390–91. The Texas

Transportation Code requires a breath specimen obtained by a police officer to “be

taken and analyzed under rules of the department by an individual possessing a

certificate issued by the department certifying that the individual is qualified to

perform the analysis.” TEX. TRANSP. CODE ANN. § 724.016(a) (West 2011). It also

provides that DPS may adopt rules approving satisfactory analytical methods. Id.

§ 724.016(b). The Court in Reynolds held that the State did not have to show that

the state trooper who conducted the breath test “was familiar with the science and

technology that underlie the test.” 204 S.W.3d at 387. The Court rejected the

contention that this requirement existed under its precedents on breath tests or

under Kelly. Id. at 389.

      Reynolds also went beyond the narrow question before it and held that the

first Kelly prong does not apply to breath-alcohol test results because “the

Legislature has already determined that the underlying science is valid.” Id. at 390.

The Court modified the second Kelly prong—the prong that examines the validity

of the application of the theory—to examine whether the specimen was analyzed

by “individuals certified by, and using methods approved by the rules of, DPS.” Id.

The Court also modified the third Kelly prong—the “properly applied” inquiry—

into whether the technique was properly applied in accordance with DPS’s rules.


                                         12
Id. at 391. The reason for the elimination of the first Kelly prong and the

modification of the last two Kelly prongs was that “the Legislature has already

determined” the validity of “the underlying science.” Id. at 390; see also id. at 391

(stating that Legislature has determined that “the underlying scientific theory” for

measuring alcohol concentration by analysis of breath specimens is “valid.”).

      I would not read Reynolds so rigidly as to foreclose the application of the

Kelly factors when breathalyzers are used under new conditions that have not been

tested by DPS and are not regulated by any specific DPS rules. Section 724.016

provides that compliance with any DPS rules is a necessary condition for the

admissibility of the test results but does not indicate that it is a sufficient condition

for admissibility. Common sense suggests that approved equipment used under

new conditions may require testing to ensure that it is continuing to produce valid

results. For example, calibration every six months may be perfectly reliable under

normal conditions but not if an earthquake has shaken the foundation of the

building where an Intoxilyzer 5000 is maintained.

      The requirement that Intoxilyzer test results are admissible only when

conducted in accordance with DPS rules first requires the existence of rules that

govern the particular application of the Intoxilyzer. In the absence of rules for a

new and untested condition, there can be no compliance with the rules. To give an

example, if a new scientific method of measuring alcohol concentration from


                                           13
breath specimens is developed and a new piece of equipment is manufactured to

implement this new scientific method, the results would not be valid until DPS

developed rules governing the new equipment. The same is true here where a well-

established piece of equipment is used under new and potentially significantly

different test conditions.

      In the earlier section on article 38.23, I have demonstrated that there are no

rules for use of the Intoxilyzer 5000 in a BAT van. The State agrees; in its

arguments regarding article 38.23, it contends that there are no DPS rules that

specifically govern the use of the Intoxilyzer 5000 in a mobile environment. The

Court is willing to allow the existing, general rules regarding the frequency of re-

calibrations and re-inspections to apply in this new context. I disagree.

      In my view, moving the Intoxilyzer from its fixed, indoor testing location to

a mobile application raises an issue that the existing DPS rules do not address. In

the absence of rules for this new application, it is impossible to conclude that the

equipment was properly used “in accordance with the department’s rules.” But the

absence of rules does not necessarily mean the application was unreliable.

Therefore, the Kelly factors should be reviewed in determining whether the State

demonstrated the reliability of the test results.

      There is a second reason that I believe the Kelly reliability inquiry should

apply here: the issue of the reliability of the Intoxilyzer 5000 in a mobile


                                           14
environment has trans-case scientific implications. Therefore, the Kelly factors

should be applied to determine whether a mobile application of an Intoxilyzer 5000

presents a reliable methodology.

      Under Texas law, the State had the burden to demonstrate reliability by clear

and convincing evidence through the application of the Kelly factors. It did not.

B.    The State failed to satisfy its burden of showing that the Intoxilyzer
      5000 was reliable under Kelly

      Schultz contends that the Intoxilyzer results were inadmissible under the

non-exclusive, flexible factors identified in Kelly. He asserts that those factors

apply not only to the general methodology underlying the Intoxilyzer 5000 (i.e.,

infrared spectrometry to measure ethyl alcohol), but also to the methodology of

using that piece of equipment in a mobile environment.

      The State identifies no evidence that the theory in question—applying the

Intoxilyzer 5000 in a mobile environment—is accepted in the relevant scientific

community. It offered no literature demonstrating the reliability of the machine

under new test conditions, i.e., in a mobile environment. It did not offer any

marketing material or literature from the manufacturer suggesting it could be

reliably used in those conditions. The State did not offer any test results from

which a rate of error could be determined for breath test results from the machine

after it has been driven on the road.



                                         15
      The only evidence from the State was Oliver’s testimony that there is no

evidence that placing the Intoxilyzer 5000 inside a van would change its

calibration. But that misplaces the burden of proof. The State had to show that a

mobile environment—with a jostling van—will not affect the machine’s

calibration. If the police maintain records of the recalibration analyses performed

on its mobile Intoxilyzer 5000 units, that evidence could have been offered to

demonstrate that mobile Intoxilyzer 5000s have not required more frequent or

greater recalibrations than immobile machines. However, no such evidence was

offered. On balance, the State has not shown by clear and convincing evidence that

the Kelly factors demonstrate the reliability of the Intoxilyzer 5000 in a mobile

environment.

      The Court concludes that the Standard Operating Guidelines are relevant to

determining compliance with the Kelly factor that requires the specimen to be

analyzed using methods approved by the DPS rules. The Court then concludes that

only two SOG requirements are at issue—the requirements that DPS technical

supervisors perform inspections at specified times (including each time the

equipment is placed into service at a testing location) and periodically calibrate the

equipment—and both were satisfied.

      The SOGs do not specifically cover procedures for a mobile environment.

But they do contain general provisions that support the conclusion that the test


                                         16
results were not in compliance and, therefore, are not reliable. Specifically, SOG

1.02 requires that “a complete inspection” be performed each time an instrument

“is placed into or returned into service at a testing location.” Technical Supervisor

Oliver testified that he believed this requirement would mandate a complete re-

inspection if the machine was simply moved a few feet across the room. Schultz’s

expert, a former DPS technical supervisor, agreed. Under that standard, an

inspection was required when the machine was initially placed in the BAT van and

then again if it was removed from and returned to the van. Thus, even if I were to

accept the proposition that the phrase “testing location” in SOG 1.2 refers to the

van, there is no evidence of when it was last moved into the van or whether it was

inspected at the time. The inspection the week before Schultz’s arrest was pursuant

to a monthly inspection schedule, not in response to the machine being moved.

There is simply no evidence of where that inspection occurred. And without any

evidence concerning whether the machine was moved into the van following that

scheduled inspection, we cannot know if SOG 1.02 was met, even when reading it

to refer to the van as the “testing location.”

      The State also did not present any evidence whether the machine remained

in the van after the prior week’s inspection; it may have been moved back and

forth into the office or between vans. The State offered no evidence of how many

miles the van(s) had driven with the machine inside after the inspection or where


                                           17
the machine had been used while in the field. I would conclude that the State did

not demonstrate compliance with SOG 1.2. And to the extent these general SOGs

are relevant to a determination of reliability in a new, untested condition, I would

conclude they do not support the Court’s conclusion that the SOGs were

adequately satisfied to admit this evidence.

       More problematic, though, is limiting the phrase “testing location” to mean

the BAT van, ignoring that the van is driven around to various testing locations.

SOG 1.1 states that a technical supervisor’s official inspection must be conducted

at “the evidential testing location.” We should adopt the logical and textual

meaning of the phrase “testing location.” The location where the test results are

obtained for evidentiary purposes is where the breath sample is submitted and

tested. The testing location here was where the officer tested Schultz: the gas

station.

       The State failed to offer any evidence regarding the reliability of the

Intoxilyzer 5000 when used in a mobile environment. Because the State did not

meet its burden under Kelly to establish that the technique of collecting and testing

a breath sample using an Intoxilyzer 5000 in a mobile application is reliable and, as

a result, did not establish the reliability of the resulting data, I would conclude that

the breath results were inadmissible and that the trial court erred by denying

Schultz’s motion to suppress that evidence.


                                          18
                                     Conclusion

      The evidence here raises questions, but no assurances, regarding the

reliability of the Intoxilyzer 5000 in a mobile environment. The State did not show

how long the machine had been in the BAT van in question. We do not know if it

was moved from the van or within the van after it was initially placed there. There

is no evidence that the machine’s calibration was ever tested in the BAT van. As a

result, we simply do not know if the jostling that every moving vehicle experiences

may have caused the machine to become mis-calibrated, resulting in unreliable test

results. It may not have; perhaps the mounting in the BAT van provides sufficient

stability. We do not know, and the State does not tell us.

      We also do not know whether the list of interferents tested for in the pre-

sample protocol is adequate to ensure reliable test results in a mobile application

versus a single, fixed testing location with a consistent source of ambient air. We

only know that the machine tests for four specifically identified interferents, none

of which were found in the BAT van at the Shell station. While the machine did

not find any of the tested-for interferents, that is no assurance of reliability here.

The issue here is not those interferents but other air contaminants that might be

encountered at a gas station but would not be anticipated in a fixed, controlled

environment. It is possible that the ambient air at the gas station had no effect on

the reliability of the test results, but again we do not know.


                                          19
      The State may yet, in other cases, show that a mobile application is reliable,

but it has not done so here. Accordingly, I respectfully dissent to the Court’s

holding on Rule 702.




                                             Harvey Brown
                                             Justice

Justice Brown, dissenting from the judgment.

Publish. TEX. R. APP. P. 47.2(b).




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