Greetings everyone! I am new to this board. I am a (more accurately the) legal advisor to state game wardens.

The scenario is: A game warden arrests a boater for boating while intoxicated, and the nearest intoxilyzer happens to be in a bordering county.

Is it lawful to take the arrestee to the other county for breath testing? CCP Art. 14.06 allows the arresting officer to take the arrestee to a magistrate in another county, but as far as I can tell taking the arrestee out of county for other purposes is not addressed.

Any input would be welcome.

A person arrested for DWI or BWI (50 HP motor or higher) can be taken to an Intoxilyzer in an adjoining county for testing as long as the person is then taken back to the county of arrest to be jailed while awaiting magistration or after magistration if the person doesn't make bail.

Boyd, is the body of water where the subject was arrested on the county line? If so, can't either county have jurisdiction? (There's a fuzzy recollection of a 400-feet rule on land, can't remember if / how it applies to water).

I don't think the jurisdiction provisions of the CCP are applicble here. I believe the 400 feet provision you are thinking of is a venue provision (lthough since I don't go to court, I could be mistaken!). I understand that some counties in Texas don't even have an intoxilyzer! The officers must either get a blood specimen or travel to an adjoining county to get a breath test done. I did some down and dirty research and can't find a single case that addressed the issue. I'm curious if anyone else comes up with something.

Neel, the venue statute you are thinking of is CCP 13.04. (Also, Art. 13.06 addresses venue for offenses committed on a boundary stream.) I agree with J.A. that the venue statute probably is not helpful here.

To answer your question, the lake where this question came from is the main body of Lake Travis, which lies completely in Travis county.

Why not go to the nearest hospital and get a blood sample?

My guess is that those counties which do not have an intoxilizer probably do not have a hospital either, so the same issue will arise. Of course all counties have sanitary places other than hospitals.

[This message was edited by Martin Peterson on 07-09-03 at .]

I am not aware of any statute that says an arrestee cannot be removed from the county of arrest. If that were so, then injured inmates might not receive appropriate medical care and one county's inmates could not be housed in another during times of overcrowding. The only requirement I find is that the arrestee be taken before some magistrate (which apparently must be in the county of arrest or an adjoining county). art. 15.17(a). Nothing in Subchapt. B of Chapter 724, Transp.Code specifies (or limits) the place of the taking of the breath specimen. I just wouldn't take the suspect so far away that he has time to change his mind.

Thanks to all who replied. I have advised our staff accordingly.