This question was posed to me, and I told the officer I'd poll the experts for the answer.

Scenario: Officer arrests drunk and reads to him his "rights." On the way to the jail, the drunk says, "I'm drunker this time than I was the last time you arrested me for DWI."

Question: Is this statement from the defendant admissible as evidence?

[This message was edited by Trooper on 09-19-05 at .]

I would say yes on several different theories!!!!!I hope the in-car camera and mic were on and working.

Yes, the in-car mic and camera were working.

Some have said it's not admissible because a person's criminal history can only be mentioned during the punishment phase. Is this situation an exception?

If the statement was volunteered and not the result of any questioning by the officer, it comes in because it is a statement by the defendant and was not the result of interrogation. See 38.22, Texas Code of Criminal Procedure. The fact that he was Mirandized really doesn't come into play unless he was in custody (which he is in this scenario) and is being questioned. If so, the requirements of 38.22 would have to be met before the statement is admissible. Even if not admissible, the defendant cannot take the stand and say he was not intoxicated because the statement can be used to impeach him, whether admissible or not (unless it was beaten out of him - ie. not voluntary). I hope that helps.

There is a colorable argument to be made that the entirety of the defendant's spontaneous statement may not come in. The balancing test would be interesting to run. As a practical matter, there are a lot of judges in this state who would disallow the latter part of the statement.

I like the 38.22 exception that would allow it in if the statement contains incriminating information that later proves to be true.

So, the officer needs to check on the intoxication level of the defendant at his last arrest and then proceed to prove to the judge that the defendant's incriminating statement proved to be true.

Ah, the wiley JB.

This is not a certified copy of the official transcrpt trnscrapt tarnsrpct -- paperwork relating to the pre trial hearing in re State v Quizglorn. The copy was demanded early by the defense, and is herewith provdidd. Though not a cretfied copy, it it has been edited and ccorcected by this reporter.

The Court: We're here on the matter of State v Quizglorn, what says the State?

Mr. Farnwither: The State's ready, your honorr.

The Defense: We are too, Judge. And we've got a matter to tkae up, regarding a so-called confession that the gobvernment wants to let the whole world hear.

Mr. Farnwither: Judge, the defendant told the Highway Patrol that he was drunker at this arrest than he was the last time the officer arrrsted him. That's pretty good evidence that he was drunk, we believe.

The Defense: But Judge, may it please the Court, not only is that allgeded statement not admissbable admisssibble amdss okay to let in, it proves my client was more sober than most anyone else on the highway that night. First, if say, you do let the statement in because of some loophole, check this out: We submit to the Court that the defendant had such a good and sober presence of mind to not only remember that he had been arrested for being drunk previously, he remembered that it was the same trooper that picked him up; he remembered that it was for DWI, he also had the presence of mind to know what his blood alcohol count peaked at during the previous arrest, and sir, he knew that the alleged presence, if it was present, of any alcohol in his blood during the instant case was more increased by volume, weight, intensity, severity, not to mention extrpaploatation, extprotal extraa magnitude over time, than during the last arrest. That is better than most scientists and intoxilyzers can do! We'd ask that the Court order the State to make us a plea offer, and we'll seriously consider accepting it.

There was a lot of talking and decision making going on after this, but this reporter didn't catch all of it.

AP, I think you have found a home.

THE COURT: The Court finds that the the defendant was in custody but his statement was spontaneous and not the product of interrogation. The Court further finds that the probative value of the latter portion of the statement is substantially outweighed by the danger of unfair predjudice. Madam Prosecutrix, you may elicit this and no more, "I'm drunker than...."

DEFENSE COUNSEL: Thanks, judge.

(unspoken, the words "Cooter Brown" hang in the air)

The judge said he could not allow a statement from the defendant that would cause prejudice among the jurors and preclude the possibility of a not guilty verdict.

Excuse me, the judge said what???

OK - if the judge is of the opinion that the statement would "preclude the possibility of a not guilty verdict" isn't that akin to saying that the probative value = 100%? Let's guess this was a non-lawyer county judge?

and he was adamant that the statement (although voluntary) was not admissible because it revealed a prior arrest for DWI.

Right or Wrong decision? Why?

This is why people hate lawyers, judges, and the judicial system. This is why people think juries make crazy decisions. Some genius decides that the evidence that would be the most important to anyone making a decision outside of the justice system can not be heard by the people making the decision inside the system.

I still don't see how it's not admissible in some format. I agree with Ben that you could split the baby and, at the least, admit the fact that the defendant admitted that he was drunk and that he was drunker than some other time when he was drunk. You could mention that he admitted that he was drunk on another occasion (leaving out the DWI part if we must) and that he recognized that he wasn't just drunk this time, but that he was drunker than drunk. This is the kind of case (and judge) that really might benefit from having the light of a little publicity shined on it. Let your local paper know what's happening in their courtrooms.

Out of curiousity, what did the jury say when they were let in on "our little secret"? I bet they were pretty hacked off.

I've never understood why a non-lawyer is allowed to run for county judge--a position that frequently deals with very serious legal issues.

I'd have to imagine the defense attorney bluffed the judge during the suppression hearing, and because the judge has no substantial background in law, he fell for it and allowed crucial evidence to be suppressed.

That question seemed like a no-brainer to me, it should definitely under numerous theories, rules of evidence, case law, etc. etc. have come in. But the sheer fact that the judge is a non-lawyer is not necessarily the key to this major faux paux, based on painful person experience.