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

from the implied consent statute. This finding-that the evidence did not establish whether
defendant could or could not read the Spanish DIC-24 form*required the trial court to ovenule the
defendant's motion fo suppress.
6. INSUFFICIENT EVIDENCE OF CAUSAL CONNECTION BETWEEN
OFFICER STATEMENT AND CONSENT
Berqner v. State, 2008 WL 4779592 (Tex.App.-Fort Worth 2008, no pet.).
ln this appeal the defendant claimed that her breath fesf resu/f should have been suppressed
because of officer's statement regarding consequences of refusal. The defendant when asked for
a sample after the warnings were read, sard She would give a sample. While officer was out of the
room, she called a friend on her cell, and he told her to refuse. When she asked officer what would
happen if she refused, he told her that she would go to jail if she did not blow. While conceding
that the officer's statement was of the type that resulted in suppressio n in Erdman. the Court found
that there was no causal connection between the statement and the refusal. Upon cross
examination the defendant admifted she already knew that she would go to jail if she refused so
the officer's statement could not have caused the "psychological pressures" that Erdman and the
cases that followed were designed to prevent.
J. BREATH TEST FOUND TO BE COERCED
State v. Serano, 894 S.W.2d 74 (Tex.App.-Houston [14th Dist] 1995, no pet.)
Where officer told defendant if he passed the breath fesf he would be released, and if he failed it
he would be arrested while defendant was at scene, said statement was coercive even though fitrto
hours passed from time of the statement to time of breath test and even though another officer
properly admonished defendant prior to the samp/eb being given.
Erdman v. State, 861 S.W.2d 890 (Tex.Crim.App. 1993).
Officer's incorrectly informing defendant of consequences of refusalto give breath sample will not
always = evidence that consent was coerced. Quesfibn of voluntariness rs a case-by-case
question of fact. Court concluded under these facts that officer stating to defendant "if he took the
test and passedhe would be released, but if he refused he would be charged with DWl" constituted
coercion.
State v. Sells, 798 S.W.2d 865 (Tex.App.-Austin 1990, no pet.).
Motorist's consent to breath test was not voluntary due to officer's statement that defendant "would
automatically be charged and incarcerated" if he refused.
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