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

so holding the Courtsfafes "Texas appettate courts have uniformty hetd that consent to a breath
fesf is not rendered involuntary merely because an officer has explained that the subject will be
released ffhe passes fhe fesf."
Hardv v. State, 2005 WL 1845732 (Tex.App.-Corpus Christi, Aug. 4, 2005)(Not designated for
publication).
ln response to her question, officer informed the defendant "if she would pass the breath fesf, she
would probably be released." ln response to the defendant's assertion on appeal that this violated
Erdman. the Court noted that the "stdtement to appellant falls far short of the officer's statements
found to be coercive in Erdman." The Court focused on the fact that the officer did not make any
statements aboutthe consequences of appellant's refusal to take a breath test beyond those listed
in Section 724.015 of the Transportation Code. By merely answering appellant's question, Officer
Trujillo did not warn appellant that dire consequences would follow if she refused to take the breath
fesf.
Ness v. State, 152 S.W.3d 759 (Tex.App.-Houston [1 District] December 2, 2004, pet. ref'd).
Police'officer's statement to defendant at the scene of the arrest that "pending outcome of breath
test, defendant would be detained" did not render defendant's submr'sslon to breath test coerced,
where officer did not make any statements about consequences of refusal to take test beyond
fhose listed in statute, and he did not warn defendant that dire consequences would follow if he
refused to take breath test.
Urquhart v. State, 128 S.W.3d701(Tex.App.-El Paso 2003, reh. overruled, pet. ref'd).
Statement by officer to defendant that if he passed the breath test he would be released was
alleged to be coercive and should result in suppression of his breath fesf resu/fs, Courtfound that
there was no causal connection between the statement and the decision to give a breath sample.
Sandoval v. State 17 S.W.3d 792, (Tex.App.-Austin,2000, pet. ref'd).
Suspecf asked what would happen if he "passed the (breath) test?" Officer responded that if
suspecf failqd the test, he would be charged with DWl, but if he passed, the officer would call a
relative to come pick up suspecf. Suspecf took a breath test. Court upheld the test distinguishing
fhese factsfrom Erdman. It did this by pointing out thaErdman concerned telling a suspect about
the extra-statutory consequences of a "refusal" to submit to a breath test while in this case the
extra warning dealt with what would happen if he "passed" the test. The Court further pointed out
that there was absence of evidence that the extra warning actually coerced the suspect.
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