April 28, 2010, 10:29
<TCT AnCo>No DIC-24 warning given b4 breath test
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...
April 28, 2010, 10:41
suzannewestHad 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.
April 28, 2010, 12:06
GMcDonaldDPS 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 .]