I would love some input from the juvenile prosecutors on two related questions. I have done some research, but either I'm not very good or the cases just aren't out there. The questions are:
1. An officer arrests a juvenile for DWI following an accident with no death or SBI. Can the juvenile consent to to give a blood specimen without parent or guardian consent or notice?
2. An officer arrests a juvenile for DWI following an accident involving either death or SBI. Can the officer require the juvenile to provide a blood specimen under Transportation Code 724.012(b) without parent or guardian notice or consent?
I know that the officer can get a breath specimen if the warning, officer's request, and juvenile's response or videotaped. But there is no mention of a blood specimen, even following a fatality accident.
Any input will be appreciated.
I'm sure your research skills are top notch I don't know of any cases either.
I hang my hat on 52.02(c)(1) that says we can have breath or blood according to 724 TTC, although (d) muddies the water some as it says breath and does not mention blood. 52.02(c)(1) says "as provided by 724 TTC" so if TTC doesn't say parents have to consent, then I think your fine.
However, very few things in the juvenile part of the family code ever requires the parent's consent. 51.09 requires an attorney's consent but then 52.02(d) waives that at least for the breath.
If an officer calls me and asks, especially on a mandatory sample, I tell them to do it according to the regular .012 procedure and we'll argue about atty consent in trial.
Would be a GREAT idea to put something in the code to clear that up, IMHO.
I agree something in writing would be helpful. The case that led to my question involved an unlicensed 15 year old who was driving with his Daddy's knowledge and consent! (Daddy got charged with an offense as well.) The juvenile was intoxicated and caused a crash that killed two people. The Trooper asked the juvenile to consent to a blood draw and the kid agreed. Even if he hadn't, I still believe a mandatory blood draw would be legal under 724.012(b) because in my opinion the provision essentially acts a search warrant. However, I doubt if the hospital would have drawn the sample if the juvenile had refused. It would have required the Trooper to get a search warrant.
Thanks for your input; I really value it.
|Powered by Social Strata
© TDCAA, 2001. All Rights Reserved.