I am considering indicting and prosecuting the next DWI breath test refusal for the third degree felony offense of Tampering with Physical Evidence:

PC, Section 37.09. TAMPERING WITH PHYSICAL EVIDENCE.
(a) A person commits an offense if, knowing that an investigation or official proceeding is pending or in progress, he:
(1) alters, destroys, or conceals any record, document, or thing with intent to impair its verity, legibility, or availability as evidence in the investigation or official
proceeding.

What arguments support or defeat this approach to dealing with breath test refusals?

For the state: By the time D is transported to the intoxilyzer and asked to provide a sample of his breath, he knows there is an investigation underway. Upon request, he has a statutory duty to provide a breath sample - a "thing" - for use as evidence in the investigation, and is so informed by the intoxilyzer operator verbally and in writing. If the "thing" is not delivered promptly, it will dissipate and be forever unavailable. D is concealing his breath from the intoxilyzer operator with intent to impair its availability as evidence in the investigation.

For the defense: The legislature has clearly set out the consequences of refusal in the implied consent law. Criminal prosecution for refusal to blow was debated and rejected - let alone felony prosecution when the underlying offense is a misdemeanor. Besides, D is not "concealing" evidence. The officer can, and already has, sniffed his breath, and can testify to the smell. So D's breath is not concealed. D is just refusing to deliver a sample in the quantity and manner requested.

[This message was edited by Boyd Kennedy on 07-26-05 at .]

The law certainly does create a structure under which a defendant may physically refuse to provide a breath/blood sample. But the law does not give a defendant the "right" to refuse, only the power.

In addition, the law does not expressly prevent prosecution. Certainly, an inference can be made but absent an express legislative statement, shouldn't the general tampering statute be available?

I suppose that one argument the defense may make is that the breath (the "thing" being concealed or withheld) is NOT evidence that is used in the trial, since it is clear that the state routinely disposes of the breath sample despite the existence of the technology to maintain it. And, the officer who disposes of a breath sample could at least in theory be charged with the same offense, since the officer knows the investigation is in progress, and that the sample is evidence. Not that I'd ever seek an indictment of the officer, but there are a couple of counties with "rogue" grand juries that go down that road...

OK, so why not blood?

What is going to be your basis/theory for showing how the defendant altered, destroyed, or concealed? Wouldn't that require some sort of affirmative act and not merely an "omission" (for lack of a better descriptor)?

What about a case where the defendant actually 'half-blows' or does a 'soft-blow'? Often we've got a defendant who thinks he can out-smart the machine by blowing most of the air exhaled around the straw rather than into the straw.

That might be a good limb to venture out upon.

Wouldn't it be a defense to tampering w/ evidence (by concealing) if the DWI statute specifically grants the power to refuse to a defendant?

If we ever get the lege to penalize the refusal to give specimens, perhaps the tampering statute is where it ought to be?

The Supreme Court in Alaska finds refusing to give breath and/or blood is not Tampering. Sosa v. State, 4 P.3d 951 (Alaska Jun 16, 2000) (NO. S-8840, 5283). This case deals with a defendant refusing to give blood in a DWI case pursuant to a search warrant.

[This message was edited by Shawn McDonald on 07-27-05 at .]

I'm not a prosecutor, but wouldn't Transportation Code section 724.013 prevent prosecution under Penal Code section 37.09?

Janette Ansolabehere

I really think this might work. From the state's perspective, this "tampering" is no different than an individual who decides to keep the crack in his body (swallowing it) rather than turning it over to the cops upon a request.
There is an investigation being conducted (i.e. the traffic stop itself), and I'm not sure it makes a difference that the officer already has some evidence of intoxication. Just as in a drug case, the officer may have other indications of a POCS, but the actual rock (inside the suspect's mouth) would be further evidence of the POCS and we still charge him with tampering.
From the defense side, I would argue more of a constitutional issue. The fact that we are charging someone for refusing to further incriminate himself. It could be argued, although I think it is weak, that it would be along the same lines as charging someone for refusing to make a statement. However, I go back to the crack rock situation, we certainly do not run into a constitutional challenge with that scenario--we are charging someone for failing to "give it up".

I think Ed may be right. We are charging a defendant with just refusing to do something. If we use Mindy's crack example, we cannot charge a defendant if we ask him for his crack and he says he does not have any, but we find it in his pocket. He must do some affirmative act, like swallow, crush, etc... before we can make a case. By that logic any time an officer smells marijuana and asks for the dope and defendant says I do not have any and we find some in his pocket we could charge him with Tampering because he is concealing. Otherwise, I think it is a good idea, but just refusing to give breath and/or blood may not be enough.

If you reference a statute, it would help if you copied it into your posting. You can find every statute online http://www.capitol.state.tx.us/statutes/statutes.html. Then just cut and paste.

Section 724.013. PROHIBITION ON TAKING SPECIMEN IF PERSON REFUSES; EXCEPTION. Except as provided by Section 724.012(b), a specimen may not be taken if a person refuses to submit to the taking of a specimen designated by a peace officer.

This may be the crack in my plan to take over the world.

By the way, this entire thread was the brainstorm of Ms. Mindy McCracken, who I see above has made her first post. Congratulations.

724.013 may indeed prohibit the taking of the specimen but it does not say anything about the application of 37.09 to the act of alteration/destruction or provide a defense to prosecution under 37.09. (Needless to say, I do not agree that the implied consent statute defines the driver's legal obligation as held by the Alaska Supreme Court, since the duty is to "not impair" under our tampering statute).

I would rely on alters or destroys instead of conceals (which does seem to envision a more affirmative act, since the container is not changed in response to the investigation and we know where the blood is). Also, I would use blood (or more specifically the alcohol content of the blood) as the thing rather than breath, since we could never forcefully obtain a sample of breath. Since we are not talking about testimonial evidence, there is no Fifth Amendment issue. This type of prosecution should not be dismissed out of hand. Some good logic supports it and it would totally change the DWI landscape.

[This message was edited by Martin Peterson on 07-27-05 at .]

Can't you harmonize the Transportation Code's prohibition with the Penal Code's Tampering by arguing that the TC simply seeks to prevent a physical struggle with the defendant over the taking of a sample? So, we take the defendant at his word when he refuses to provide a lawfully requested sample but he takes us at our word when we prosecute for destroying valuable evidence. Does that work?

Come on, you lurkers! Be the devil's advocate. Why wait for a paying client?

Another question: Should I instruct police officers to be sure and educate any defendant indicating a refusal that he is potentially facing prosecution for Tampering with Evidence?

If the analogy of 'confession by stanky breath' holds, then wouldn't your officer would be close to attempting to force a confession by threats of further prosecution?

Granted there isn't alot difference between, 'blow or we'll pop you for tampering', and 'tell me what I want to know, and I'll put in a good word with the DA for you.'

Although, I had this thought:

Instead of comparing a breath refusal to eating the crack, perhaps it's more like the defendant that keeps the rock in his tightly closed fist. The defendant takes no action other than keeping his fist closed as tightly as he can. We've had to pry open people's hands during book-in procedures before. That technically could be a tampering. Concealing the rock in your fist until you get a chance to flush it or eat it later.

Release of physical evidence is not the same as uttering words that incriminate. The privilege against self-incrimination protects a defendant against a coerced confession. It does nothing to prevent police from collecting physical evidence, even if that evidence is on or in a defendant's body.

So, police can collect fingerprints, DNA, voice samples, and blood without violating the 5th Amendment. Of course, there may be 4th Amendment search and seizure considerations, but no privilege against self-incrimination.

Many defense attorneys use that argument to misdirect the public into thinking there is something wrong with requiring a defendant to provide physical evidence of intoxication. While it may be a good sound bite, it is legally false.

John, you are just my favorite prosecutor, you're always up to something. If you have probable cause to arrest, you have probable cause to get a blood draw. Trying to get a third degree felony off a Misdemeanor B, shameful. You are probably wondering what my lackluster argument would be?

In part: My client gave you a sample of his breath when he talked with you, you observed that he had the trinity: 'blood shot eyes, unsteady on feet, strong odor of alcohol on his breath'. He did not hide or conceal his breath. Just because you did not receive it in a manner consistent with your theory of prosecution doesn't mean he hid it. You arrested him based in part on the odor of his breath, you got your sample.

I think Juries will be your harshest critic of your suggested line of action (except of course in Georgetown).

See also: Sepctor v State 746 S.W.2nd (Tex.App.-Austin 1988, no pet.) [And although this is about written forms, analogy may be made] We believe something is destroyed withing the meaning of Sec 37.09 (a)(1) evidentiary value is destroyed. My argument may be that you would have to prove the evidentiary value beyond a reasonable doubt. I would argue that:
The P.O. already had signs of intoxication, or he/she would not have arrested, so this would either be a .08 or above (you need to prove that), or it is just another sign that alcohol was present, thus cumulative and unnecessary. I think I would make you prove its worth (.08 or above) beyond a reasonable doubt, not just a suggestion. That's my thoughts, keep up the good work.

How does this compare with someone giving a handwriting sample or voice sample, in terms of the right against self incrimination? Don't do felonies yet, but I assume that you need court orders to have the defendant provide these. With breath or blood, you have much more exigent cirm. since the evidence is being lost as you wait.
Def. knows this and would probably be happy as a clam to provide breath or blood the next day. Since he/she knows this, they obviously want to wait until the evid. is destroyed.

I agree with JMH. That's why the hidden crack rock example, while similar enough for a general discussion, is not identical. The crack rock remains a crack rock until ingested and digested. And even inside a tightly-closed fist it doesn't change its status or composition. It can still be found and recovered, hours or days later, if it's hidden.

Handwriting exemplars, voice samples, DNA - all are stable as well. No harm in getting them later, and for that matter, they are "unlimited" in nature. No one is going to run out of DNA in his body.

But alcohol in the blood - it's being absorbed as you stand there and talk to Mr. Wobbly. That's what makes this a unique situation. No, it doesn't require an affirmative act by the suspect as does chewing up a crack rock, but yes, the evidence IS being destroyed right before your eyes.

Now we all know that a drunk will "sober up," but you could probably argue that your particular client had no actual intent to "alter or destroy" evidence. Fair enough. So I think for John's plan to be acceptable, that yes, the suspect should be warned in exactly that language. "I believe you have evidence within your blood that is being destroyed as we stand here. I'm going to read you a form about your driving privileges and then ask you for a sample of your blood. If you choose to refuse, it will be assumed that you are altering or destroying that evidence by your body's natural processes of absorption and elimination. And you may be charged with that additional felony offense."

Name the movie:

"God willing, we will prevail, in peace and freedom from fear, and in true health, through the purity and essence of our natural fluids."