concluding that trial court erred by not granting motion for acquittal of driving under the influence charge due to improper admission of breathalyzer test
How later courts described this case
- concluding that trial court erred by not granting motion for acquittal of driving under the influence charge due to improper admission of breathalyzer test
- arguing that “the evidence should be judged on all of the evidence presented at trial, even evidence improperly admitted”
- holding results of breathalyzer test inadmissible when not in compliance with Section 1547
- reversing judgment of sentence because the only evidence of intoxication was the inadmissible result of a breath-test administered on a modified, unapproved device
Written by the judges who cited it.
Distinguished
Distinguished by Fleming v. State, 1989 Tex. App. LEXIS 1759 (1989)
However, McGinnis is distinguishable from appellant’s case.
The opinion
HUTCHINSON, Justice,
Dissenting.
I dissent. I do not believe that a directed verdict is warranted here. Sufficiency of the evidence should be judged on all of the evidence presented at trial, even evidence improperly admitted. Commonwealth v. Cohen, 489 *528 Pa. 167 , 413 A.2d 1066 (1980). Applying this standard, the evidence on this record is sufficient. The Commonwealth should be free to reprosecute appellant. It may try the case differently or introduce evidence of drunkenness not presented at the initial trial. The Commonwealth may even be able to introduce the breathalyzer results by showing that the modification was peripheral to the device’s operation. Therefore, I would vacate the judgment of sentence and remand for a new trial.
NIX, C.J., joins in this Dissenting Opinion.