What's an Involuntary Breath Test?

During our last look into the coercive nature of the DIC-24 statutory warning, we noted the DWI suspect under 21 years old is informed by the police that if they give a breath/blood sample and the result is less than .08, they may still be subject to less severe criminal penalties than if they completely refused to take the test. Let's look how the Texas courts might evaluate a challenge to a breath/blood test result based on this coercive language.

By analogy, in order for a person's confession to be admissible, the confession must meet certain standards for voluntariness. Although the breath/blood test has been deemed "not testimonial" by certain Texas courts, using the confession analogy can help us fashion an argument to protect the record in a DWI prosecution where the accused is a minor and provided a breath/blood sample after being read the DIC-24.

The test of admissibility should be that a breath/blood sample was provided freely, voluntarily, and without compulsion or inducement. See Sossamon v. State, 816 S.W.2d 340 (Tex. Crim. App. 1991)(confession context). In this case, the Court of Criminal Appeals determined whether or not a confession was voluntary due to a promise. First, the court determined a promise must be of some benefit to the accused. (certainly, the promise of a less severe penalty than the accused might otherwise receive could satisfy this element.) Second, the promise was made by a person in authority. (police officers would qualify as persons in authority.) Finally, the promise was of such a character to likely influence the accused to speak untruthfully. (here's where the confession analogy breaks down somewhat)

As a general rule, the Texas cases on confessions stand for the premise that where a promise of leniency is exchanged for a confession, the resulting statement by the accused is not voluntary and inadmissible. Just like the cases on confessions, the literal language of the DIC-24 may be interpreted as a promise of leniency of less severe penalties if the suspect cooperates and provides a breath or blood sample to the police.

Next time we'll examine the need for the accused to rely upon the promise in the DIC-24 before voluntariness becomes an issue. Call a qualified Bryan-College Station DWI attorney for answers.