VI. Portable Alcohol Sensor Devices

Fowler v. State, 2007 WL 2315971 (Tex.App.-San Antonio 2007, pet. ref’d) (not designated for publication).

Fernandez v. State, 915 S.W.2d 572 (Tex.App.-San Antonio 1996, no pet.).

Court rejected argument that evidence of the “passive alcohol sensor” was not admissible because it was not certified on the basis that the device was not taking samples for the purpose of determining alcohol concentration but was rather given as one of several DWI FST tests, and the device merely shows the presence of alcohol.  Qualitative score given by device was not admitted.

Cox v.  State, 446 S.W.3d 605 (Tex.App.-Texarkana 2014, pet ref’d.)

This case held that it was improper for the Judge to find violation of condition of probation based on reading of a PBT device when that was the only evidence of alcohol consumption. It must be said that there was a total failure on the part of the State to prove that the PBT results were scientifically reliable so this does not speak to the device being unreliable but more to the fact that in the future the State must prove its reliability.