Wednesday, November 26, 2008

The Statutory Warning - Legal Coercion

The DIC-24 (or statutory warning) is the form containing legal warnings required to be given orally and in writing before a police officer can request a DWI/DUI suspect to provide a sample of their breath or blood. The necessary condition precedent to giving the warnings is that the person is under arrest for driving while intoxicated (DWI) or driving under the influence (DUI).

The statutory warning tells the person arrested that a refusal to provide a sample may be admissible in a subsequent prosecution. The form also notifies the accused of the different lengths of suspension, depending on whether the person refuses or takes the test. There is a separate paragraph that's specifically directed to persons younger than 21 years of age. The warning says:
If you are younger than 21 years of age and have any detectable amount of alcohol in your system, your license, permit, or privilege to operate a motor vehicle will be suspended or denied for not less than 60 days. However, if you submit to the taking of a specimen and an analysis of the specimen shows that you have an alcohol concentration of less than 0.08, you may be subject to criminal penalties less severe than those provided for under Chapter 49, Penal Code.
By its nature, this warning is coercive since it explicitly informs the person if they take a breath test and the result is less than 0.08, they may still be subject to less severe criminal penalties than if they completely refuse to take the test. However, under the implied consent law, consent to the taking of a breath or blood sample must be voluntary.

For consent to be voluntary a person's decision must not be the result of physical or psychological pressure brought to bear by police officials. A clear reading of the DIC-24, as it relates to suspects under 21 years old, is coercive because the warning provides for less severe penalties only if the accused person agrees to provide a sample. In other words, the warning results in a person providing a sample "involuntarily." Consequently, these breath and blood test results should be attacked by DWI defense lawyers by motions to suppress evidence based on this psychological coercion.

3 comments:

Anonymous said...

This is part of what is wrong with the criminal justice system today. Instead of focusing on the offense that is committed and trying to get the person help, we have people(defense attorneys) looking for technicalities to get the defendant off with no punishment. It might be a little different if one of your family members or frends becomes severely injured or killed by an inresponsible intoxicated driver. How about we as Peace Officers just let everyone drive drunk and that way we don't have to worry about them being back on the street doing the same thing. Oh yeah, that would save us ALOT of time but would screw the defense attorneys out of the thousands of dollars they make each year getting them off!

Anonymous said...

Hello Anonymous, The problem is not all peace officers are interested in keeping peace. Some officers are looking to put another knotch in their belt at all cost. We all have different tolerances and chemical makeups. The intoxilyzer is not fool proof and neither is an officer. I have never had a DWI, DUI or been arrested for anyting but I can tell you this we need defense attorneys to protect us from the misconduct!!! Sure keep the drunks off the road but do it the right way. Not with deceptive practices.

Anonymous said...

We need defense attorneys to protect the innocent from corruption. Peace Officers don't go without blimishes either you know... I have a dear friend who had to pick up her family and move out of town because of Police Misconduct towards her mentally retarded son. He does not drive but drinks. They would arrest him for public intoxication over and over. Now give me a break! What is he going to do plow over someone with his tennis shoes... He was sent to Huntsville for a year because of Public Intoxication. This ticks me off because now I have to pay for him being in prison via our tax dollars. Think about it! He was not causing harm to anyone but himself. There are innocent people who are charged and convicted because of Peace Officer Misconduct. IT takes an awfully low person to pick on a mentally impaired person. All IMO!!!