Despite legal breath test, man charged with intoxication manslaughter

AUSTIN (KXAN) — Despite blowing below the legal limit on a breathalyzer test, police have charged Samuel Gee, 45, with intoxication manslaughter for the death of Robert Hanks in an early morning collision on Jan. 15. According to the arrest warrant, Gee admitted to having two beers at a bar earlier in the night and that he missed the stop sign at the intersection of Berkman and Cloverleaf, colliding with Hanks’ vehicle.

The officer on the scene said he could smell alcohol on Gee’s breath and felt Gee was intoxicated based on the results of the Standardized Field Sobriety Test. Even though the Portable Breathalyzer Test returned a .07 blood alcohol level result, below the .08 legal limit, the officer felt based on the totality of the circumstances there was enough probable cause to charge Gee with intoxication manslaughter.

“There are clues we look for and he demonstrated enough clues for the officer to feel he was impaired enough,” said Det. Mike Jennings with the Austin Police Department.

GOING IN-DEPTH // Blood-alcohol levels

  • According to alcohol guidelines, an average man will reach .08 if he drinks four standard drinks in the first hour.
  • An average woman will reach .08 if she has 2.5 standard drinks in the first hour.
  • But many warn there are a host of factors that could make driving on just one drink very dangerous.
  • And the National Transporation Safety Board is now recommending states lower the drunken driving level from .08 to .05.

Jennings said the portable breathalyzer carried by all DWI officers, as well as other officers on shift, provide a helpful tool to gauge intoxication, but the test results do not provide the final say.

“When we make an arrest, it is not dependent on what breath test comes back. We have to base that on everything we see and that’s what occurred in the case,” said Jennings.

Attorney Mindy Montford said the PBT is not admissible in criminal trials.

“It is almost like a polygraph,” Montford said. “There is not an absolute science to it.”

Blood draw results and Intoxilyzer breath test results are state certified and can be used as evidence in court, but even a blood draw below the legal limit may not be enough to squash a case if prosecutors feel they can still prove intoxication. Montford said prosecutors can argue the BAC dissipated in the time it took to administer the test.

In Gee’s case, he refused a blood test according to officers, but his blood was taken nearly five hours after the initial call once officers obtained the needed search warrant.

By law, intoxication is defined by statute as a .08 BAC or the loss of normal mental and physical faculties.

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