Just when you thought they couldn't get any more diabolical, I witness this at a felony Driving While Intoxicated sentencing hearing in Guadalupe County District Court: a portable breath test being given to a Defendant in court to determine what his sentence should be. This week I watched a defendant in the 25th District Court being sentenced for felony DWI. But before the judge would pronounce sentence, he ordered the probation department to administer a portable breath test to the defendant in court. In a felony DWI, when a person is going on probation, he is required to receive a certain amount of days in the county jail upfront as a condition of the probation. The judge in this case announced that, if the test turned out negative, the court would assess 10 days jail, but if it was positive, the defendant would get 30 days.
Now it bears pointing out that, in Texas, the results of a portable breath test are not admissible against a DWI defendant to determine his guilt or innocence. Portable breath tests are not considered scientifically reliable enough to be trusted for that purpose, and the people who give the tests are not always properly to trained to do so. And, sure enough, when the probation officer in this case tried to give the portable breath test in court, he couldn't get the device to work properly. The judge finally gave up and ordered 10 days. This raises the question, why is a local district court using something that isn't admissible in evidence because of its unreliability in order to decide what would be a fair punishment for a given defendant? Was the Magic-8 Ball broken?