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

M. OBSERVATION PERIOD
1. MORE THAN ONE OFFICER OBSERVATION REQUIREMENT
State v. Melendes, 877 S.W.2d 502 (Tex.App.-San Antonio 1994, pet. ref'd).
Same operator is not required to observe and administer breath test. Officer who was also a
certified operator observed defendant for 15 minutes and then turned defendant over to another
operator who administered the fesf.
2. NO NEED TO REPEAT ON 2ND TEST
State v. Moya ,877 S.W.2d 504 (Tex.App.-San Antonio 1994, no pet.).
When test is repeated due to intox error message, an additional 15 minute observation period is
not necessary.
3. NO LONGER NECESSARY TO "OBSERVE'' DEFENDANT FOR 15
MINUTES
State v. Reed, 888 S.W.2d 117 (Tex.App.-San Antonio 1994, no pet.).
Subject need not be continuously obserued for 15 minutes now that regulations expressly provide
that subject need only be in the operator's continuous presence.
N. BREATH TEST DELAY PRECLUDING BLOOD TEST
Hawkins v. State, 865 S.W.2d 97 (Tex.App.-Corpus Christi 1993, pet. ref'd).
Fact that breath fesf was not taken until two hours after arrest thereby precluding option of
defendant's exercising right for blood test within 2 hours of arrest did not render breath fesf resu/f
inadmissible.
O. OFFICER MAY REQUEST MORE THAN ONE TYPE OF TEST
State v. Gonzales, 850 S.W.2d 672 (Tex. App.-San Antonio 1993, pet. ref'd).
Where defendant was unable to give sufficient breath sympte due to asthma, it was proper for
officer to request a blood test and indicate the DIC-24 consequences of refusal would apply to
blood fesf reguesf as well.
SEE ALSO
Texas Department of Public Safetv v. Duoqin, 962 S.W.2d 76 (Tex.App.-Houston [1st Dist.] 1 997,
no pet.).
Kerrv. Texas Deoartmentof PublicSafetv,9T3 S.W.2d732(Tex.App.-Texarkana 1998, no pet.).
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