Has anyone out there encountered a situation where the arresting officer in a DWI obtains a breath test after reading the suspect the pre-Sept, 2001 DIC-24 rather than the new form with the updated / longer suspensions?

We're aware of some cases out there that involve commercial vs. regular driver's licenses and whether giving the wrong warning taints the breath test. This appears to be somewhat analogous to an old vs new statutory warning.

Has anyone encountered this situation? If so, how have your judges been ruling on motions to supress the breath test?

The purpose of the warnings is to ensure that the person who refuses to give a sample does so with full understanding of the consequences. If he provides a sample, the test result is admissible without regard to the warnings or whether they complied in all respects with 724.015. 752 S.W.2d 585. Erdman has no basis in the statute or logic and is contrary to 724.064. But, given that decision, the issue becomes whether the faulty warnings were so inherently coercive as to affect the consent (which was already impliedly given under 724.011). Sandoval, 17 S.W.3d 792. Substantial compliance should be enough. Gonzalez, 967 S.W.2d 457. To me the old warnings were less coercive than the new. In any event, the defendant must convince the court "he would have chosen not to take the breath test" if he had received the correct warning (and exactly why the different warning would have changed his decision). Schafer, No. 01-00-826-CR (11/14/02).

You might take a look at the series of cases addressing whether the defendant's decision to refuse to give the requested specimen should be suppressed because the officer didn't warn the defendant in writing before requesting the specimen. The courts normally will find the omission by the officer to be harmless unless the defendant puts forth some evidence that he would have consented to give the specimen if only the officer had given him the warnings in writing before asking him for the specimen.

Janette Ansolabehere