Driving While Intoxicated Case Law Update - Texas District ...

3. OFFICER'S CHOICE WHETHER BREATH OR BLOOD
State v. Neel,808 S.W.2d 575 (Tex.App.-Tyler 1991, no pet.).
A police officer arresting a suspectfor driving while intoxicated is entitled to choose between asking
fhe suspect to take a breath fesf or a blood test, both of which are authorized by statute. The
officer need not track the statutory language and ask the defendant to take a breath or blood test.
E. MIRANDA WARNINGS
1. NEED NOT GIVE PRIOR TO REQUEST FOR BREATH SAMPLE
Parks v. State, 666 S.W.2d 597 (Tex.App.-Houston [1st Dist.] 1984, no pet.).
Miranda warnings need not be given to suspect prior to breath fesf reguesf.
2. INVOCATION OF RIGHTS WILL NOT EXCLUDE REFUSAL
Garner v. State,779 S.W.2d 498 (Tex.App.-Fort Worth 1989) pet. refd per curiam, 785 S.W.2d
1 58 (Tex.Crim.App. 1 990).
BTR admissible even if after right to countsel is invoked.
Jamailv. State, 787 S.W.2d 380 (Tex.Crim.App. 1990).
Mixing request for breath sample with warnings during custodial interrogation such that defendant
perceived he had the right to consult an attorney will not negate abilrty to show refusal at trial.
3. NO RIGHT TO COUNSEL PRIOR TO DECIDING WHETHER TO GIVE
SAMPLE
Forte v. State, 759 S.W.2d 128 (Tex.Crim.App. 1988).
De Manoin v. State, 700 S.W.2d 329 (Tex.App.-Houston [1st Dist] 1985) aff'd. 787 S.W.2d 956
(Tex.Crim.App. 1990).
F. BREATHAMPULES NEED NOTBE PRESERVED
Turpin v. State, 606 S.W.2d 907 (Tex.Crim.App. 1980).
Breath ampules need not be preserued. Defendant's inability to obtain blood test within two hours
did not render breath fesf resu/fs inadmissible.
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