I have an officer who arrested a subject for DWI, and discovered that the subject did not have a driver's license. In his report, the officer states that the subject agreed to give a breath sample, so they did one. When we sent the case back complaining about there being no DIC-24, the officer responded that if a person does not have a license, no DIC-24 paperwork is required.

I suspect that this officer did not read the DIC-24 to the subject at all, and merely asked the subject to consent to give a breath sample. Before I call over there and potentially embarrass him, I wanted to ask the forum: if an officer makes no effort to read the DIC-24 to a subject, does that make the breath test results inadmissible?

I know it would make a refusal inadmissible, but I can't find caselaw talking about my situation...

Had a similar situation at trial with a blood draw.

No DIC-24 will probably make your officer have to explain his actions on the stand, because most officers do read them, but there is no requirement that a valid consent requires it in other areas, so why would it for a breath/blood?
The purpose of that page is to use as evidence of a REFUSAL.

BUT the case may end up with the same issue we had in court--the defendant later said he didn't consent and the blood was taken anyway, and the lack of the DIC-24 confused the issue. My jury didn't like it, and more than one person commented on it. I would say if your consent is on video, or if your guy actually blew, your consent is good without the DIC-24. Have no caselaw to back it up, though, just my opinion.

If your suspect didn't have a driver's license, even the info in the DIC-24 about a high blow suspending the license wouldn't apply to him, so I guess I see your officer's point. Interesting.

The warnings are to discourage a defendant from refusing to provide a sample. He is already required by law to provide a sample. The law simply recognizes that the defendant has the physical ability to refuse. So, to discourage a refusal, the defendant is told all the terrible things that could happen following a refusal (as if a drunk could listen and care).

So, the absence of the warnings have absolutely no bearing on the issue of whether the defendant voluntarily consented.

DPS does not distinguish its jurisdiction under implied consent between in state and out of state DLs or unlicensed drivers. If a subject has an out of state DL, or no DL, they are assigned a DL number (beginning with 8 or 332) and it is suspended or denied. The number does not provide privileges not otherwise existing, but serves the purpose of tracking for the hearing.

This is a common LEO misunderstanding. For the ALR statutes, the same paperwork is required without respect to the license origin or UNL status.

DPS will report a subsequent enforcement action to the home jurisdiction for local action on the DL. Likewise, DPS will suspend or deny issuance for future applicants.

[This message was edited by GMcDonald on 04-28-10 at .]