Throwing Out the Breath Test: Consequence of Improper DWI Warnings

By Allen, Texas Criminal Defense Lawyer Kyle T. Therrian
Office Number: (972) 562-7549
24 Hr Jail Release: (214) 403-6522

Ask an average person on the street what they know about criminal law and they could probably tell you they have the right to remain silent and anything they say or do can and will be used against them in a court of law. Thanks to shows like Cops and Law & Order, our Miranda rights have become part of pop culture. Beside our Miranda rights, there simply aren’t many situations where the police are required to explain to a suspect his or her legal rights. A Driving While Intoxicated investigation gives rise to one of these few situations.

In a Driving While Intoxicated investigation, the law requires a unique set of warnings to be read to the DWI suspect prior to requesting a specimen of breath or blood. The warnings required by law are listed in Transportation Code Section 724.015 and replicated in a Department of Public Safety form known as the DIC-24, a form which is literally read to DWI suspects across the state. A copy of that form can be viewed here: DIC-24.pdf

Rarely, will someone find themselves in a situation where these statutory warnings were just flat-out omitted. However, in a significant amount of cases, you can find officers doing one of two things: (1) leaving certain important warnings out, or (2) giving warnings, advice or consequences beyond what they are supposed to. When this happens, the consequences can be significant.

In 1993, the Texas Court of Criminal Appeals decided the case of Erdman v. State, which in many ways is similar to the Miranda case decided by the United States Supreme Court. In Erdman our Court explained that it is a “no-no” for the officer to do either of the two things described above (whether he meant to or not). As the Court explained, for the officer to not give a DWI suspect the “actual, direct, statutory consequences” under 724.015 is a violation of the law itself and probably even psychologically coercive (even when the extra information is true).

What happens when the law was violated by the very person investigating a violation of the law? My mom always said “two wrongs don’t make a right.” Perhaps our legislators and judges had mothers growing up, too, because that is exactly how our law treats a situation like this. Depending on what warnings were omitted or what extra information was injected by the officer, the breath or blood test will be thrown out completely.

*Kyle Therrian is an attorney licensed to practice in the State of Texas. Nothing in this article is intended to be legal advice. For legal advice on any case you should contact an attorney directly.

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