Here's the thing: I just got a motion to suppress where D says he didn't speak English well enough and Trooper didn't speak Spanish well enough, so let' throw the .32 (not a typo) blood test out because my consent wasn't effective. Trooper did a so-so (IMHO) job communicating during the SFTs, gets him to the jail, reads the warning in Spanish and then gets an inmate to help interpret. (No officers on duty to interpret.) D says he'll blow, but never does get machine to register. So, then he consents to blood test. I can't find any cases like mine. So, should I just use the consent to search cases that are out there? [Sorry if there is already a topic on this, but I did search and couldn't find one.]

The law says the defendant is supposed to provide a sample. There is no Fourth Amendment violation because you are not asking for consent in a constitutional sense. Your probable cause and the exigent circumstance of alcohol burning off explains why you don't need a warrant under the Fourth Amendment.

Your request for consent is really a request for cooperation. So, the defendant's failure to understand should have no bearing on the admissibility of the sample of blood. If he had refused, then he could make a good argument that the language difficulties prevented him from making an intelligent refusal.

Notice that all the information you are reading to the defendant (in Spanish) focuses on the consequences of a refusal. That's because all the warnings are designed to get the defendant to cooperate, which he did.

Lawyers and judges have turned all of this into a legal nightmare by fabricating the need for a voluntary consent to do something that the law already requires from the defendant.

State v. Amaya, 221 S.W.3d 797 might help.

The breath or blood results should not be suppressed just because the defendant didn't understand the written warnings or the oral warnings or even both. The burden in a MTS is on the defense to rebut the presumption created by the implied consent statute. They've got to put on some evidence of that.

Thanks for the help! I also looked at the TDCAA DWI book. The book cites Bennett, but I looked that up & it was about drawing blood from D when there is a dead passenger.

See Nebes v State, 743 SW2d 729
Gonzales v State 967 SW2d 457

The DIC 24 is only a predicate to a refusal. When they give a sample they are "deemed to have consented" that means the state is relieved of the burden to show voluntary, knowing consent.

Were this not true intoxicated persons could have their breath test supressed. Bad situation. Be careful that the defense does not use refusal cases to argue supression of the consent. All the warnings and harm cases refer to admitting refusals not breath test.

Intoxication rendered her incapable of consent?

A person can be unconscious and consent. That's how Implied Consent works. When you sign up for the privilege of a driver's license, you're giving consent.

Consent can be revoked with a refusal, which results in a suspension of your license after your ALR hearing.

Can she consent days/months/years in advance of date rape?


Don't get me wrong, I understand why the implied consent rule is necessary. Just like it is necessary to pretend that everyone knows every law so that ignorance is no excuse. But it really is playing make-believe to say that drivers consent in advance to these tests, even if this is a necessary fiction.

Driving is a privilege, not a right. You have to take a test. You have to agree to follow the rules. One of the rules is you must agree to consent. Without that contract, you are driving without a license.

It would be interesting to try and argue implied consent if you had a driver that wasn't licensed.

If consent was not implied then the defendant's intoxication would cause the consent to be involuntary. The state would always be in a Hobson's choice of losing relevant evidence by obtaining relevant evidence. Implied consent reverses the normal standard, the burden is on the defendant to refuse. In order to introduce the refusal as evidence the state must show that the defendant was warned and not induced by the officer to refuse. Warnings and understanding relate to the predicate for refusals, there is no predicate for submitting a sample except a valid arrest.

Phillip, the driver is warned of implied consent laws on getting a license. The transportation code makes consent implied if you operate a motor vehicle in a public place and are lawfully arrested for a Chapter 49 offense. It doesn't matter if you have, have ever had, want or even thought about getting a DL.

Here is law.

If a
person is arrested for an offense arising out of acts alleged to
have been committed while the person was operating a motor vehicle
in a public place, or a watercraft, while intoxicated, or an offense
under Section 106.041, Alcoholic Beverage Code, the person is
deemed to have consented, subject to this chapter, to submit to the
taking of one or more specimens of the person's breath or blood for
analysis to determine the alcohol concentration or the presence in
the person's body of a controlled substance, drug, dangerous drug,
or other substance.

Now when you get your DL you are warned this is what the law is, you agree to follow the law, you acknowledge the results of refusal.