We just had a judge suppress a breath test refusal where the officer read the pre-September 1, 2001 Dic-24 to the defendant instead of the dic-24 with the larger suspensions. Let me know what your thoughts are.

My thoughts are that the law is a fool.

We are more protective of a defendant's decision to deny lawful and reliable evidence to an investigator than we are of the people the defendant threatens to kill on the highway with his drunk driving.

It is time to ask the Legislature to make it a crime (Class A misdemeanor, unless defendant has two prior DWI's, then third degree felony) for a defendant to refuse to provide a breath sample upon request.

Let me attempt to understand the basis for such a ruling. Rule 401-2 says the evidence is relevant and admissible. 724.061 says the evidence is admissible. But 724.015, obviously designed only to protect a suspect from the rigors of 724.031 et seq., is a mandatory statute. Thus, although the officer made a request, which was refused, we pretend like no request was made because the cart somehow was being pulled by an imperfect horse. Thus the response to the request is now considered to have been illegally obtained and subject to the statutory exclusionary rule because it was an illegal request? 724.015 may provide a basis to say the breath test result is inadmissible, or that the DL cannot be suspended, but to say it prevents admission of a refusal to submit a sample makes not quite as much sense as Judge Johnson's dissent in Beeman. i.e., somewhat less than zero. I guess its all in the packaging, some defense attorneys would easily rival the purveyors of snake oil.

The judge in this case ruled that the refusal is involuntary because the exact language from the transportation code (statutory requirement not met) was not read to the defendant. I feel that this does not go to the question of whether such evidence is voluntarily or involuntarily retrieved, it goes to the length of the suspension that can be imposed at the alr hearing. This is purely an administrative license suspension question.

I imagine the Defendant would testify that he would have agreed to provide the breath sample if he had only been told of the correct length of suspension. But, the judge, as finder of fact, should have the discretion to believe or not believe that statement.

A couple of sessions ago, we tried to get the legislature to change the warnings to say something far more general, like, "Really bad things can happen if you refuse to provide a breath sample." That way, the defendant frankly has a better understanding, and we don't get caught up in minute mistakes. It didn't pass.

How about: " I really don't care if you give me a breath sample or not, because you look really drunk. And if you refuse, I can just charge you with another crime. What do you want to do?"

I always stress to my recruit classes that they MUST ALWAYS USE the current forms for exactly this reason--the judge can squash their evidence flatter than a pancake! Unfortunately, I know that it is a problem, particularly right after the legislature changes the law. It always takes time to get the new form approved and out to the field, and agencies tend to want to use up the old ones.

Janette Ansolabehere
DPS

Since when does the refusal to provide a sample have to be voluntary? And how does the failure to correctly state the suspension provisions have anything to do with admissibility for an entirely different purpose, i.e. inferring defendant's sample would have shown intoxication or that he at least had a reason to think it might? Presumably if the greater penalty had been explained, the defendant might have chosen to give a sample? Give me a break. A judge should be faithful to the law and maintain professional competence in it.

You're right - it's the giving that must be voluntary. It seems as though the defense would have an issue if the defendant blew and then claimed involuntary because improper law given. But not the reverse!

Voluntariness, in the context of giving a breath sample, is not meant to be the sort of voluntariness required for a confession. Since you already have given your consent to a breath sample by getting a driver's license, the law only seeks to make sure someone didn't break your arm to get the sample. Who cares whether you heard all the warnings, etc. Those warnings are there merely to encourage you to do that which you have already consented to doing. This whole area is insane.

Maybe the issue is more confusing that I gave the judge credit for. I note that in Griffith, 55 S.W.3d at 601 fn.5, Erdman is cited for the following proposition: "police must warn D.W.I. suspects correctly about the statutory consequences of refusal before introducing that refusal as evidence of intoxication". While Erdman actually dealt with admissibility of the results of a test, the fact that it is erroneously said to hold as stated is some evidence that the matter can be easily confused (by judges).

The holding of the 1st Court of Appeals, that a failure to comply perfectly with the warning statute does not prohibit use of the breath test results, would seem applicable to a refusal as well. The evidence of the refusal was not obtained as a result of the bad DIC-24. There was no causal connection.

OK, I admit my mistake. The judge was faithful to the law. Who says you have to study logic in order to learn law. Woehst