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

When the legislature makes laws which govern the investigation of criminal offenses they must balance the interest of crime prevention with the interest of individual rights. People arrested for DWI have experienced this firsthand. The law requires an officer investigating a possible DWI to read several paragraphs of the Transportation Code warning a person of the consequences of refusing a breath or blood test – referred to as “the statutory warnings.” These warnings used to mean something.

The statutory warnings worked much in the same way as Miranda warnings. The police were required to read, verbatim, the law regarding the taking of a specimen of breath or blood. Due in part to the drastic measures which are taken to investigation the commission of a misdemeanor offense, the balance of interests strictly condemned any extra legal persuasion on the part of the officer requesting a specimen.

Over the years, this very simple task has been frequently neglected by investigating officers trained to persuade individuals to waive their constitutional and statutory rights. When this would happen the legal result would be a prohibition on the use of the breath test result. This was the balance of interests.

This month the Court of Criminal Appeals reset that balance of interests. In the coming months/years a new standard will be set which will likely permit officers to enter into considerable more negotiation regarding the taking of a breath or blood specimen, including a discussion of legal consequences not intended to play a role in a suspect’s determination.

*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.