Friday, November 04, 2011

DWI Law - Texas Says "Tell the Officer Yes" is Not Coercive Breath testing

In Leal v. State of Texas, --- S.W.3d ----, 2011 WL 5223122 (Tex.App.-Dallas) the defendant, who spoke Spanish only, was arrested for DWI. Appellant Leal was videotaped as Officer Gabriel played a recording, in Spanish, of the DIC–24 statutory warnings. Before playing the tape, Office Gabriel directed appellant's attention to an enlarged copy of the DIC–24 statutory warnings in Spanish on the wall next to him and told him to follow along with the recording. Although she did not ask whether appellant could read, the recording shows appellant looking at the posted form numerous times during the four-minute recording. Near the end of the recording, the recording asks in Spanish, “Right now, we are asking for a sample of breath. Tell the officer ‘Yes' or ‘No.’ ” Officer Gabriel's practice was to stop the tape after it asked for a sample of breath, and ask the defendant herself, in Spanish, “Yes” or “No.” On this occasion, however, Gabriel cut off the tape after “yes,” so that appellant heard, “Right now, we are asking for a sample of your breath. Tell the officer ‘Yes'—.” Officer Gabriel then immediately asked appellant herself, “yes or no.” Appellant nodded yes. Thereafter, the videotape shows appellant providing two breath samples.

On appeal, the court held that the playing of the tape in the manner described did not cause the breath test to become nonconsensual. They wrote:

"Having reviewed the videotape, we conclude it supports the trial court's conclusion that appellant's consent was voluntary. The statutory warnings were on an enlarged form posted on the wall just inches from appellant. Officer Gabriel directed appellant's attention to the form and told him to follow along with the recording of the DIC–24 warnings in Spanish. Several times during the four-minute tape, appellant looked at the form as if he were reading it. Although the officer cut off the tape after “yes,” she asked appellant, “yes or no,” almost instantaneously. Moreover, appellant could see the recording was interrupted. Having just been warned of the statutory consequences of refusing to submit to the test and having just been told the officers were “asking for a sample” of his breath, we believe a reasonable person in appellant's position would have understood the recording had been cut off, and not that appellant had no choice in whether to provide a sample. Under the circumstances presented, we conclude the trial court did not err in denying appellant's motion to suppress."

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