October 07, 2009, 16:14Riley Shaw
Mandatory Blood Draws in Juvenile DWI/Intox Asst/Man. Cases
In reviewing Sec. 724.012(b) of the Transportation Code (Implied Consent), the officer's ability to obtain a mandatory breath or blood specimen for BI/SBI or death appears to be predicated on the person's refusal to submit.
Family Code Section (TFC) 51.09 requires concurrence of a child's attorney in order for a child to waive a right.
TFC 52.02(d) seems to indicate that the decision to submit or refuse to submit to a breath test is a "right" since the legislature carved out a specific exception to 51.09 and provided a mechanism for a child to submit or refuse to submit to a breath test without the assistance of an attorney. It does NOT, however, provide a mechanism for a child to submit or refuse to submit to a BLOOD test without the assistance of an attorney.
If the above is correct (and if the submit/refuse decision is a "right" that invokes TFC 51.09 - is it?), then can a child "refuse" a blood request, and thus trigger a mandatory blood draw, without the assistance of an attorney? Or does TFC 52.02(c)(1) somehow carve out an exception to the "refusal" requirement?
Is anyone aware of any caselaw, either adult or juvenile, that helps to answer the above?