We would like to begin requiring, as a condition of probation, that felony DWI probationers in our county be required to submit a specimen of their blood, breath or urine upon the request of any police officer (especially when they are stopped for DWI). The breath test refusal itself would constitute a violation of probation. Some in our office have raised the issue of the voluntariness of the breath test if they actually blow because of the condition of probation (blow or face prison). I don't think it is an issue as a defendant can pretty much waive any of his rights in entering into an agreement for probation. I know that a condition of probation requiring sex offenders on probation to submit to warrantless searches of their homes, vehicles and computers is okay, at least according to McArthur v. State, 1 S.W.3d 323. I don't see a difference. Does anyone have a thought on this? Thanks.

We make all of our felony probationers have the following condition:
The defendant shall submit to chemical testing upon request by probation officer or peace officer having jurisdiction by providing a sample of blood, breath, or urine, as requested by said officer to determine whether the defendant has ingested alcohol or an illicit drug.
I don't think anyone has contested it yet and I know that we've revoked some people just for violating this condition.

In Travis County and Williamson County, that's a standard condition on all misdemeanor probations and deferred adjudications. Wasn't challenged, to my knowledge.

I wanted our probation conditions to use the COP approved 9-0 by the US Sup. Ct. in US v. Knights. That was a Calif. case were a cop searched a probationer's home because he had a reasonable belief--but less than PC--that he had contraband there. His COP said police and probation officers had the right to search him or his property, residence, etc. for any reason they wished, 24/7.

Our district judges would not allow it, claiming that Tamez v. State, 534 SW2d 686 (Tex.Crim.App. 1976) protects probationers from such searches.

Do you think Tamez prevents such COPs? Is there any case law that effectively overrules Tamez?

McArthur v. State, 1 S.W.3d 323 (Tex.App.-Fort Worth 1999)

Ramirez v. State, 2004 WL 1574228 (Tex.App.-Austin Jul 15, 2004) (NO. 03-03-00683-CR)