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

He challenged his subseguent license suspension arguing that because he was notwarned of the
consequences of his refusal to give a specimen under 724 and Secfibn 522 (regarding commercial
/tcenses), his refusal was not knowing and voluntary. Court of Appeals found that the failure to
warn him of both consequences rendered his refusal involuntary.
(b) DoN'T NEED TO BE G|VEN.
Texas Department of Public Safety v. McGlaun 51 S.W.3d 776 (Tex.App.-Fort Worth 2001 , pet.
denied).
Ihe rssue is whether failure to warn the defendant of the consequences of his refusal to give a
breath fesf as to his commercial license means his license should not be suspended. The
defendantwas not operating a commercialvehicle when he was stopped. The Court held thatthe
Defendant was properly warned and his license should be suspended. Specifically, the Court held
that 724.015 does not distinguish between commercial and non-commercial vehicles, so it applies
to all vehicles. Ihe fact that different consequences are authorized by more than one applicable
statute does not reduce the notice given to the defendant of the consequences provided for each.
The Court nofes the contrary holding in Thomas and declines to follow that opinion.
See also Texas Department of Public Safetv v. Struve. 79 S.W.3d 796 (Tex.App.-Corpus Christi,
2002, pet. denied).
11. DIC 23 & DIC 24 DOCUMENTS ARE NOT HEARSAY
Block v. State,1997 WL 530767 (Tex.App.-Houston [14th Dist.] 1997, pet.ref'd) (Not designated
for publication).
DIC 24is nof hearsay as the warnings form is not offered to prove the truth of the matter asserted
in those warnings, but rather is offered to show that the warnings were given to the defendant.
Texas Department of Public Safetv v. Mitchell,2003 WL 1904035 (Tex.App.-Fort Worth 2003,
no pet.).
DIC 23 and DIC 24 were properly admifted under the public records exception to the hearsay rule
803(8).
12. FAILURE TO READ "UNDER 21' PORTION OF DIC 24NOT PRECLUDE
ADMISSION OF BT
State v. Klein , 2010 WL 3611523 (Tex.App.-Waco 2010, reh. overruled) (Not designated for
publication, pet. ref'd).
The defendanf's consent to a breath fesf was voluntarily given, despite the police officer's failure
to comply with a statutory requirement to orally recite warnings to defendant before obtaining
consent for the breath test. In this case the warnings omifted concerned the consequences of
tz